1. MAHMUD, J.-'ibis Letters Patent Appeal is directed against the judgment dated 22-12-1970 of a learned Single Judge of this High Court allowing Constitutional Petition No. 411 of 1965 instituted by the respondent No. I and setting aside the order of the Additional Settlement Commissioner (Judicial), Karachi dated 8-5-1965, directing the Deputy Settlement Commis--sioner to demarcate the open space attached to a building and to make the necessary entries in the P. T. Ds. Issued to the parties.
2. The dispute relates to the compound measuring some 343 sq yds. Attached to a building No. RB- 9/21/1 situated on Jhamrai Road, Amil Street, Off Robson Road, Karachi, which comprises of two storeys. The ground floor No. G/1 was transferred to Mst. Alhamidi Begum, respondent No. 1 (who will hereinafter be referred to as "the Respondent"), under P. T. O. Dated 21-3-1960 and P. T. D. Dated 17- 12-1962, while the first floor, No. 1/1 was transferred to 1qbal Ahmad, the Appellant, under P. T. O. On 16-4-1961 and P. T. D. Dated 23-10- 1963. Unfortunately, in none of the transfer documents issue) to the parties, was the compound mentioned and hence the omission has given rise to litigation between the parties.
3. Soon after the issue of P. T. O. In her favour, the respondent constructed several shops in the compound, after obtaining conditional approval of building plans from the Karachi Development Authority, which she gave on rent. The K. D. A. Gave approval of the plans subject to the condition that she should obtain the No-Objection Certificate from the Settlement Authorities before starting construction. It is not in dispute-that the respondent neither applied for, nor obtained the required No-Objection Certificate from the Settlement Department. In March 1962, the appellant submitted an application to the Additional Settlement Commissioner (Judicial), Karachi, objecting to the respondent's unauthorised construction of the shops in the compound as being encroachments upon his easements and conveniences and praying for division of the compound between the parties. This applica--petition was dismissed by order dated 19-12-1962 as being belated. After filing two civil suits against the respondent for declaration and injunction and for partition of the compound, which bore no fruit, the former being withdrawn and the latter dismissed on the ground' of no jurisdiction, the appellant addressed a letter to the Settlement Commissioner, Karachi, on 18- 4-1964 requesting that his case be re-examined and the compound be demarcated and the portion admissible to him be entered in his P. T. D. Document. The Settlement Commissioner endorsed the following note thereon on 27-4-1964 :- "If the applicant transferee applied for demarcation of the open area attached to the building before securing P. T. D. The demarcation should be made."
He then forwarded the letter to the Deputy Settlement Commissioner for dis--posal in accordance with this direction. The Deputy Settlement Commissioner after examining the N C H application form for transfer submitted by the appellant on 9-11-1959, found that the appellant had not applied for demarca--petition before securing the P. T. D. And that an alleged marginal note appearing at the top of his N C H form requesting for transfer of a portion of the ground floor courtyard in his possession, was an interpolation, as the internal evidence itself showed. Therefore, the Deputy Settlement Commissioner rejected the application by his order dated 4-6-1964. The appellant then preferred an appeal to the Additional Settlement Commissioner (Judicial), Karachi, who observed that the allocation and demarcation of the disputed compound between the transferees of the first floor and the ground floor of the building, was an inherent right, vide Memo. Of the Chief Settlement Commissioner No. 759-P.I/ Reh/61, dated 15-2-1961 (which confirmed an earlier Memo. Dated 9-1- 1960). As this had not been done in the present case, he ordered that the compound under dispute be demarcated and entered in the P. T. Ds. Issued to the respective parties, looking to their conveniences and easements. Accordingly, by his order dated 8-5-1965, he set aside the order of the Deputy Settlement Commissioner and remanded the case to him for demarcation. Being aggrieve--ed by this order, the respondent filed the Constitutional Petition No. 411/65 on 3-6-1965, which was allowed by the impugned judgment of the learned Single Judge, dated 22-12-1970, by which he set aside the order of the Additional Settlement Commissioner dated 8-5-1965. The present Letters Patent Appeal has been filed against the said judgment.
4. The learned Single Judge held that the Deputy Settlement Commis--sioner, to whom alone the power to demarcate had been delegated by the Chief Settlement Commissioner, could make demarcation only upon an independent application by an aggrieved party requesting for demarcation or in the exercise of power under section 21(3) of the Displaced Persons Compensa-- petition and Rehabilitation Act, 1958 to correct the omission, neither of which was attracted in the case. Therefore, he held that the Deputy Settlement Com--missioner merely acted under the direction of the Settlement Commissioner and the order passed. By him on 4-6-1964 was defective and without jurisdiction and, consequently, the impugned order of the Additional Settlement Commis--sioner dated 8-5-1965 passed on appeal, being a continuation of the proceeding, also suffered from the same defect of jurisdiction and had to be set aside. However, while allowing the respondent's petition, the learned Judge observed that each of the parties was entitled to a respective portion of the disputed compound, thus; "It is clear that in the permanent transfer deeds of the contending parties the open space is not mentioned. It is equally clear that in accordance with the definition of the word 'house' vide section 2(4), [of the Displac--ed Persons (Compensation and Rehabilitation) Act, 1958]. It is defined to include the open space. Since each of the two - parties have been transferred a house, each one of them is entitled to a share in the open space. However, neither the two parties on receipt of the provisional transfer order or the permanent transfer deed invoked the jurisdiction of the appellate authority with a view to reopen the question about the inclusion of the open space. It may, however, be mentioned here that the Chief Settlement Commissioner had by two memos. Dated 9- 1-1960 and 15-2-1961 directed the Deputy Settlement Commissioners to demarcate and transfer the open space to persons who fall in this category. The Deputy Settlement Commissioner probably omitted to consider these memos. But despite the omission of the Deputy Settlement Commissioner to demarcate the open space, the effect of the transfers in favour of the parties is that each of them would be entitled to the open space in accordance with the definition of the word 'house'."
He however, declined to give any direction observing :------- "The learned counsel for respondent No. 2 (appellant) has placed his difficulties in the way of getting the P. T. D. Corrected. In view of his legal right to the open space it will be for him, if so advised, to approach the Settlement Authority for redress and I cannot give any direction in this behalf in these proceedings."
5. It must be mentioned that as the respondent had failed to produce a slay order from the High Court (for which the respondent was given time), the Deputy Settlement Commissioner proceeded with the demarcation of the disputed compound as directed by the Additional Settlement Commissioner. He issued notices to the parties and inspected the site and after hearing them, he passed an order dated 30.6-1965 (a copy of which was filed by the appellant as annexure to his objections to the petition), demarcating the disputed compound and dividing it equally between them. The relevant part of the order reads as follows :---- "It is not understood as to how unauthorised construction was made over the entire open area by Al Hamidi Begum when she was only transferee of the tenement of G/1.
The record shows that the lady never appears to have applied for No --Objection Certificate or obtained permission from the Settlement Organisation for having the construction over the said area. As such the said construction in the shape of shops is unauthorised and has no (sic) binding on the Settlement Department.
However, in the light of the orders passed by the A. S. R. C. (Judicial) in Appeal No. 1906/65 dated 8- 5-1965 the open area attached to the building measuring 343 sq. Yds. Is to be demarcated.
Looking to the easement of the transferee of the first floor namely Iqbal Ahmed, I hereby order that the applicant Iqbal Ahmed is entitled to an area of 171 sq. Yds. Attached to the Robson Road and Jhamrai Road.
The rest of the area measuring 172 sq yds. Towards the Jhamrai Road and other side of the main building be transferred to Mst. Al- Hamidi Begum.
Necessary entries of the area in respect of demarcation be made in the relevant records."
6. Mr. Ismail Munshi, learned counsel for the appellant, assailed the impugned judgment on the ground that the order of the Additional Settlement Commissioner directing demarcation of the disputed compound ought not to have been set aside by the learned Judge on the ground that the appellant himself had not filed any independent application for demarcation to the Deputy Settlement Commissioner, because, according to counsel, independently of an application, a duty was cast on the Settlement Department to implement the instructions contained in the Memos. Of the Chief Settlement Commis--sioner above referred to, and that the order of the Additional Settlement Commissioner was really, only giving effect to that duty. His further submis--sion is that if according to the learned Judge, the order of the Additional Settlement Commissioner was void for lack of jurisdiction, the learned Judge having expressed the view that the appellant had a legal right to a portion of the open space, should have given a direction to the Settlement Authority to demarcate the disputed compound in accordance with law, without requiring the appellant "to approach the Settlement Authority for redress", which step the appellant can now no longer take in view of the settled law laid down by the Supreme Court, in S. Anwar Mussain Sani v. Sarfaraz Ahmed and 2 others (PLD1971SC669). That after issue of P. T. D., the Settlement Authorities become functus officio to deal with the property.
7. Mr. Talmiz Burney, learned counsel for the respondent, supported the judgment under appeal and repeated the same arguments which he canvassed before the- learned Single Judge, namely, that the order of the Additional Settlement Commissioner dated 19-12-1962 had become final by which the appellant's application to question the possession of the respondent of the compound had been rejected. According to him, the appellant having exhausted all his remedies, has no right to question the possession of the respondent, and that after issue of P. T. Ds. To the parties, the Settlement Authority became functus officio. It is not necessary to discuss these submissions of Mr. Talmiz Burney as the judgment proceeded on an altogether different ground, namely, the jurisdiction of the Deputy Settlement Commissioner to -act on a direction from the Settlement Commissioner.
8. We have considered the submissions of counsel and we respectfully agree with the conclusion reached by the learned Judge that the order passed on appeal by the Additional Settlement Commissioner dated 8-5-1965, was tainted with the same defect of the lack of jurisdiction as was the original order of the Deputy Settlement Commissioner dated 4-6-1964. The only question therefore, for our consideration is whether, in the circumstance: of this case, we ought to give a direction to the Settlement Authority to consider the question of demarcation of the disputed compound, which direction, the learned Single Judge declined to give.
9. We are inclined to accept the submission of Mr. Ismail Munshi for the appellant that the High Court has power to give direction to the Settlement Authority to demarcate the disputed compound and determine the matter in accordance with law. This power of the High Court to make an order directing the Settlement Authority "to do what it is required by law to do" is conferred by Article 199(1) (a) (i) of the Constitution. Such a direction was issued by the High Court of West Pakistan, Karachi Bench under Article 98 of the 1962 Constitution, which was upheld by the Supreme; Court in S. M. Ishay v. Syed Mujtaba Hussain and another (1968SCMR584). The direction of the High Court in that case was to the Settlement Authority to hold the auction in accordance with law. The High Court can issue such a direction even after the P. T. D. Has been issued to the transferee, as has been s held by the Supreme Court in Nisar Ahmed v. Chief Settlement Commissioner and others (1973SCMR147). It was there observed that the principle enunciated by the Supreme Court in S. Anwar Hussain Sani v. Sarfaraz Ahmed and 2 others above-mentioned, had reference to the powers of the Settlement Authorities and not to the powers of judicial review vesting in the High Court under Article 98 of the 1962 Constitution. The Lahore High Court has applied this principle recently in Muhammad Yaqub v. Settlement Commissioner, Lahore Division and others (PLD 1975 Lab. 1553).
10. But, in our opinion, to give the direction prayed for by Mr. Ismail Munshi would be a futile exercise of power, because that, which the High Court would direct the Settlement Authority to do, has already been done by the Deputy Settlement Commissioner by his order dated 30-6-1965, C That Officer, as rightly observed by the learned Single Judge, alone has the original jurisdiction to demarcate and has already exercised such jurisdiction, by the aforesaid order. In our view, the Deputy Settlement Commissioner had acted correctly in accordance with the instructions contained in the Memos. Of the Chief Settlement Commissioner dated 9-1-1960 and 15-2-1961, under which the open area attached to a building should be properly demarcated and D allocated to the respective transferees of the ground floor and first floor of the building and that every effort should be made to give a portion of the compound to each transferee of the building irrespective of the fact whether he has been transferred a portion of the ground or upper floor. By equitable dividing the compound between the parties in accordance with the aforesaid Memos, the Deputy Settlement Commissioner appears to us to have done substantial justice between the parties and, in particular, he has rightly refused to recognise as binding on the Department, the unauthorised and illegal encroachments made by the respondent, who without any shadow of title to the compound, had constructed shops, without even obtaining the permission of the Settlement Department. The respondent could not be permitted to retain the ill-gotten gains and her unjustified enrichment. In such circum--stances, to have given relief to the respondent by setting aside the order of the Additional Settlement Commissioner dated 8-5-1965, would be to perpetuate something which would be patently unjust or unlawful. The grant of relief in writ jurisdiction being entirely discretionary with the High Court, had the learned Single Judge, in our humble opinion, refused the relief to the respondent on the facts of the case, he would have acted in aid of justice, even though the impugned order was technically defective. In this connection, Mr. Ismail Munshi referred to the decision of the Supreme Court in Nawab Syed Raunaq A.I v. Chief Settlement Commissioner and others (PLD 1973 SC 236). Chief Justice Hamoodur Rehman observed as follows at page 258 :--- "An order in the nature of a writ of certiorari or mandamus is a discre--tionary order. Its objection is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
To the same effect is the judgment of the Supreme Court in Walt. Mohd. And others v. Shaikh Mohd.
And others (PLD 1974 SC 106) wherein it was observed by Muhammad Gul, J that it is a well settled principle that the High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill-gotten gains. The aforesaid principles were again confirmed by the Supreme Court in The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others (PLD 1975 SC 331).
11. The above-discussed aspect of the matter has not been considered by the learned Single Judge. We would therefore, for the foregoing reasons, allow this Appeal and set aside and reverse the impugned judgment dated 22-12-1970. Accordingly, the Constitutional Petition No. 411/65 instituted by the respondent is dismissed. In the circumstances, we would leave the parties to bear their own costs.