Evacuee Property No:XVII 7-S-1 Nishat Cinema, Gujranwala was transferred to late Mian Zahoor-ud- Din, who is represented by his legal heirs now. He was issued P.T.D. on 17-6-1968 for the building only with a specific mention that the land belonged to Municipal Committee, Gujranwala. There would have been no dispute thereabout except when the Highway Department Gujranwala lodged a claim qua the land underneath and issued a notice on 2-4-1994 for vacation and its removal being an encroachment. This prompted the transferees to file a suit for injunction against the Province of Punjab and the Highway Department. They had also filed an application before the Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore for providing an alternate, property in lieu of Nishat Cinema Gujranwala. The matter was taken cognizance 'by the Member, Board of Revenue/Chief Settlement Commissioner Punjab, Lahore, who observed that as per inquiry and the Revenue Entries the land had throughout been owned by the Provincial Government/P.W.D. as Ghair Mumkin Sarak and the Municipal Committee, Gujranwala had no title or rights over the said land. Keeping the background in view it was observed by the Chief Settlement Commissioner that "it is now established beyond any doubt that the entry of Municipal Committee, Gujranwala as owner of the Cinema site as wrongly made in the P.T.D. it was the fault of the Department to have made this entry without consulting the entries in the Revenue Record. In all probability, if the true position about the ownership had been ascertained, the P.T.D. for the Cinema and its 'installations would not have been issued at all or would have been issued under an arrangement with the. Highway Department in which 'event the -petitioners would not have faced the present dilema." 'Being conscious of implications of issuance of P.T.D. that afterwards the Department becomes functus officio, it was however, observed that since the transfer of Cineina building etc. existing on the land of the Highway Department was made without their knowledge and consent, they had the least concern with the rights of the petitioners' which "department is already, treating the petitioners as encroachers and it would be under no obligations to compensate them for the distress being caused to them." Taking all these aspects into consideration, it was observed that "the predicament of the petitioners is manifest and understandable. However, on the legal side, I am afraid, repeal of the Settlement Laws, there is no provision for allotment of alternate property. It does not seem possible to accommodate the 'petitioners' request or to provide them any relief." Accordingly, the application was ordered to be filed observing that the petitioners will be at liberty to seek redress from the competent judicial forum. This was vide order dated 4-1-1995. Thereafter, the petitioners (successors-in-interest of late Mian Zahoor-ud-Din) Filed W.P. No,63- R.95 for a direction that " the order dated 4-1-1995. passed by the learned Member Board of Revenue may kindly be set aside with a consequential direction that the petitioners be allotted some alternate residual commercial, industrial, urban or rural property of equal value". A report was in the first instance submitted before this Court by the Department conceding the factual aspect of the matter but showing its inability that there was no provision for accommodating the petitioners as it was not a pending case at the time of the repeal of the Settlement Laws. During the course of hearing of the petition the learned counsel for the Settlement Department and the learned Advocate-General for the Province of Punjab appeared who conceded that the petitioners were entitled to alternate property. Accordingly the writ petition was accepted by a learned Single Judge with the following direction:- "After hearing the learned counsel for the petitioner and in view of the statement of the learned A.A.-G. and counsel for the Settlement Department, I am of the view that on facts and circumstances of the case the petitioners are entitled to alternate property as against their claim as held in the aforementioned case M.A.Hafiz Khan. It is therefore, directed that the respondents shall provide to the petitioners alternate property in the form of urban land/rural agricultural land or any urban commercial plot as against their claim. The petitioners are at liberty to remove the Cinema machinery from the building."
This was vide order dated 6-6-1995. This order is the subject-matter of this petition i,e, C.M.No, 1 of 1998 under section 12(2), C.P.C. that the same suffers for "want of jurisdiction" as no such direction could be issued in writ jurisdiction by this Court and the same be recalled.
2. In pursuance of the above direction allotments were made in favour of successors of Mian Zahoor-ud-Din which have been challanged by the Province of Punjab in the writ petitions, mentioned in the succeeding paragraph.
3. According to the figures given by the parties, the area allotted and the price for the same is descriptive from the under-mentioned tabulation;- W.P. No. 11-R of 1999 1 Date of order of allotment by the notified officer.7-8-1996
2. Measurement of the allotted land 4-K, 13-M
3. Rate of land fixed on the basis of Rate of 1946- 47Rs. 5.24 Per Kanal
4. Location of the land/Nature of Landed Property.Mauza Sherkot, within center of Lahore City/Urban/Building/Site.
5. Total Value of allotted land determined by the notified officer.Rs. 4993.72 W.P. No. 12-R of 1999
1. Date of order of allotment by the notified officer.20-7-1995
2. Measurement of the allotted land 63-K. 11-M and 218 Sq.ft
3. Rate of land fixed on the basis of Rate of 1950- 51Rs.67.40 and Rs. 177.40 Per Kanal
4. Location of the land/Nature of Landed Property.Mouza Ichhra within Lahore City Council/Urban/Building Site.
5. Total Value of allotted land determined by the notified officer.Rs. 8908.00 W.P. No. 13-R of 1999
1. Date of order of allotment by the notified officer.27-8-1995
2. Measurement of the allotted land 93-K, 8-M
3. Rate of land fixed on the basis of Rate of 1946- 47Rs. 12-00 per Kanal.
4. Location of the land/Nature of Landed Property.Mouza Naunarian, situated within Lahore City Council/Urban/Building Site.
5. Total Value of allotted land determined by the notified officer.Rs. 1121-00 W.P. No. 14-R of 1999
1. Date of order of allotment by the notified officer.15-1-1996
2. Measurement of the allotted land 106-K, 7-M
3. Rate of land fixed on the basis of Rate of 1946- 47Rs.49-80 per Kanal.
4. Location of the land/Nature of Landed Property.Mouza Badro Tehsil Cantt, Lahore/ Urban/Building Site.
5. Total Value of allotted land determined by the notified officer.Rs. 5296-00 W.P. No. 15-R of 1999
1. Date of order of allotment by the notified officer.3-4-1996
2. Measurement of the allotted land 24-K, 11-M
3. Rate of land fixed on the basis of Rate of 1946- 47Rs.21-00 per Kanal.
4. Location of the land/Nature of Landed Property.Mouza Sehajpal, situated within Lahore City Council/Urban/Building Site.
5. Total Value of allotted land determined by the notified officer.Rs. 516-00 W.P. No. 16-R of 1999
1. Date of order of allotment by the notified officer.24-4-1996
2. Measurement of the allotted land 92-K, 15-M
3. Rate of land fixed on the basis of Rate of 1946- 47Rs. 13.16 per Marla
4. Location of the land/Nature of Landed Property.Mouza Saggian, situated within Lahore City Council/Urban/Building Site.
5. Total Value of allotted land determined by the notified officer.Rs. 1221-00 This land measuring 428 Kanals, 5 Marlas has been allotted for the price of Rs,22,055.
4. The allotment concerning the land situated in Mauza Shera Kot, Lahore, is also challenged by one Haji Muhammad Younas by filing W.P. No,22-R of 2001, whereas, W.P. No,119-R of 1996 has been filed by Muhammad Yagoob and Farzand Ali challenging the allotment of land situate. in Mauza Saggian, Lahore.All these petitions have a common feature i,e, that the allotment in favour of successors of Mian Zahoor-ud-Din has illegally been made. They have thus, been heard together and shall stand disposed of .through this judgment.
5. It is contended by Ch. Mushtaq Masood, Advocate the learned counsel for the applicants/petitioners herein, that no direction for allotment could be issued by this Court after the law relating to evacuee properties stood repealed w,e,f, 1-7-1974 as no proceedings at that time were pending. It is contended that a direction by this Court under Article 199 of the Constitution can be issued only for doing something which is required by law to be done and no direction over and above the law can be issued. According to him such a direction as has been issued in the case suffers from want of jurisdiction for which petition under section. 12(2), C.P.C. is competent. It is contended that in pursuance of such a direction a large property situate in urban area of Lahore has been allotted for paltry price at a ridiculously low rates which orders are wholly unwarranted by law and rather trained with - malatide. Reference has been made to Syed Saifullah v. Board of Revenue, Balochistan through Member (RJT) and four others (1991 SCM R 1255), Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing)/Chief Settlement Commissioner, Punjab, Lahore v. Muhammad Mustafa and 74 others (1993 SCM R 732), Muhammad Ramzan and others v.
Member (Rev)/CSS and others (1997 SCM R 1635), Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others (1999 SCM R 1719) and Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others (2001 SCM R 1822).
6. Mr. Shehzad Shaukat, Advocat, the learned counsel for the petitioner in W.P. No,22-R of 2001, has submitted that which had been declared as a building site by virtue of Notification dated 16-5-1973 could not be allotted. Likewise, Mr. Izharul Haq Advocate, the learned counsel for the petitioners in W.P. No,119-R of 1996 contends that building sites are no more allotable under the law.
7. Mr. Maqbool Sadiq, Advocate, the learned counsel for the legal heirs of late Mian Zahoor-ud-Din, contends that it was the fault of the Settlement Department itself which issued the P.T.D. on receipt of the price that the Municipal Committee, Gujranwala, was shown the owner of the land to whom the transferee had been paying lease money. It is contended that the Chief Settlement Commissioner himself realized that injustice had been done to the transferee on account of the mistake and fault of the department but refused to rectify the same. It is contended that the transferee in the circumstances was entitled to be compensated for the wrong committed by the department and was not to be made to suffer. It is further contended that the department did agree before the learned Single Judge that alternate property could be provided to the transferee.
According to him the High Court had the jurisdiction to issue such a direction which was rightly issued and all the allotments made thereafter were in compliance with the direction of the High Court. Reference has been made to Dr.M.A. Haseeb Khan and others v. Sikandar Shaheen and 9 others (PLD 1980. SC 139), Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab, and others (PLD 1991 SC 691), and North-West Frontier Province Government , Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 another (PLD 1993 SC 418). It is further contended that the writ petitions challenging the allotments made in the year, 1995-96, filed in the year, 1999, suffer from laches and should be dismissed accordingly. Reference. has been made to Sher Brothers Transport Co. Ltd.
Lyallpur v. District Magistrate/ Collector, Lyallpur and others (1986 SCM R 1090), Federal Public Service Commission v. Abdul Majid Khan and another (1987 C.L.C. 1773) and Muhammad Taqi v.
Lahore Development Authority and others (1993 C.L.C. 2533).
8. It is not in dispute that late Mian Zahoor-ud-Din had a claim against which Nishat Cinema, Gujranwala was transferred on terms mentioned in the P.T.D. showing that the land belonged to Municipal Committee, Gujranwala. It was the advent of Highway Department which claimed the ownership of the land that the problem arose for the transferee. The aspect that the transferee was not at fault and it was the Settlement Department itself which was responsible for the situation that arose has been taken note of by the learned Member/Chief Settlement Commissioner Punjabin his order dated 4-11-1995 who, however, expressed his inability to redress the grievance and accommodate the transferee in view of the repeal of the Settlement laws. There can hardly be any dispute that no one is made to suffer for the mistake of the Court. This concept has stemmed from well-known maxim "Actus curie neminem gravabit" an act of the Court shall prejudice no man).
The principle has been extended and applied to matters dealt with by the statutory functionaries like the Settlement Authorities Reference may be made to Mian Irshad Ali v. Government of Pakistan through Secretary Ministry of ehabilitation, Islamabad and 13 others (PLD 1975 Lahore 7) upheld in Iftikhar Hussain and others v. Mian Irshad Ali and others (1987 SCM R 2059). The transferees thus were not wholly unjustified in approaching the Chief Settlement Commissioner for the redressal of their grievance. The injustice done' to them thus had to be remedied in accordance with law.
9. The question, however, whether this Court in writ jurisdiction could issue such a direction as has been issued above, has become subject of dispute. The case of the applicant, Province of the Punjab is that such a direction suffer from want of jurisdiction inasmuch as the Court could issue only a lawful direction which could be complied with by the statutory functionaries under the law.
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which confers and vest this Court with writ jurisdiction to issue appropriate directions, its clause (1)(a)(i) reads as follows:- "199. Jurisdiction of High Court.-- (1) Subject to the Constitution. a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) on the application of any aggrieved party, make an order---
(i) directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation , or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or." (Underlined by me).
10. A direction of such a nature to a functionary/authority to do anything he is required by law to do is comparable with the writ of mandamus as is generally known. It was held in Subhan Beg and 18 others v. Pakistan State Oil Co. Ltd, Rawalpindi (PLD 1980 Peshawar 113) that "a person claiming mandamus, in order to be entitled to receive it, must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced. And this duty must be one which is clearly defined, imposed or enjoined by law. In other words an applicant for mandamus must show that he has a legal right to the performance of a legal duty by the party against whom a mandamus is sought. Thus in the absence of proof that any statutory duty was involved or any legal right was being enforced or performance of a public duty was being claimed, a mandamus cannot be issued." In Hindu General Panchayat (Regs.) v. Government of Province of Sindh and 21 others (1984 C.L.C. 503) again a learned Division Bench observed that "the person claiming a writ of mandamus should show that he has a clear legal right to the performance of duty by the respondent against 'whom writ of mandamus is sought". Durga Das Basu in Shorter Constitution of India, thirteenth Edition 2001 has dealt with this subject and commented at page 901 as follows:- "Mandamus will lie to any person who is under a duty imposed by statute or by the common law to do a particular act. If that person refrains from doing the act or refrains, from wrong motives, from exercising a power which it is his duty to exercise, the Court will by order of mandamus direct him to do what he should do" And that, where `a tribunal as declined to consider according to law mandamus would be granted commanding the tribunal to proceed according to law.'
Further at page 907 it has been noted that "mandamus will not issue to direct the Government to do a thing which it has no legal power to do." In law of Writs by V . G.Ramchandra n's Fifth Edition, at page 679, the extent of relief which can be granted in a writ of mandamus has been dealt as follows:- "Even in cases wherein a writ of mandamus is available and an aggrieved party approaches either the Supreme Court under Article 32 or a High Court under Article 226, the Court can pass an order directing the authority to perform its duty which it is under obligation to perform. The Court cannot, while issuing a writ, direct the authority to grant relief prayed by the petitioner in its entirety ignoring the provisions of the Constitution, the relevant Statute or common law."
11. TheChief Settlement Commissioner. in the instant case had in the impugned order expressed his inability to order alternate allotment in favour of the transferee. It had thus to be established before this Court that such an alternate allotment could be made which he failed to do and that his order was wrong and illegal. The view of the Chief Settlement Commissioner as to the effect of repeal of the Settlement Laws was quite consistent with the legal position obtaining in the matter. In Member, Board of Revenue, Punjab (Settlement & Rehabilitation Wing)/ Chief Settlement Commissioner, Punjab, Lahore v. Muhammad Mustafa and 74 others (1993 SCM R 732) a direction was issued by the High Court to the Member Board of Revenue/Chief Settlement Commissioner under a compromise that "the claimants or their heirs are allotted available land anywhere in Punjab by his Notified Officer as soon as it is possible within next six months. It will be open to the petitioners to point out any area available. The learned Member, Board of Revenue/Chief Settlement Commissioner shall see to it that allotment in lieu of the pending unsatisfied claim of the petitioner is made and possession delivered to the petitioners within the aforesaid period of six months as the agony of the expectation has gone long, too long" This order was challenged before the Honourable Supreme Court and the direction so issued by the High Court was held to be "manifestly against the law". The legal position and efficacy of such direction was also considered in Muhammad Ramzan and others v. Meniber (Rev) CSS and others (1997 SCM R 1635) and Ali Muhammad through legal heirs and others v. Chief Settlement Commissioner and others (2001 SCM R 1822). In the latest case of All Muhammad, it was held that after the repeal of the law, there was no jurisdiction left to make alternate allotments. It was observed that any direction made by the High Court to the Settlement Authorities "will have no legal impact because the functionaries of Settlement Department owe a duty to implement only those directions/orders of High Court which have been passed in accordance with. law and not otherwise and if the order/direction made in this behalf by the High Court lacks legal backing it will not confer a right upon a person in whose favour such order/direction is passed thereby that only lawful orders are to be implemented. In forming this opinion we are fortified with the judgment reported in the case of Province of Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari '(PLD 1997 SC 351) and Muhammad Ramzan v. Member (Rev)/CSS and others (1997 SCM R 1635)". As to the effect of a confessional statement made by the counsel for the Settlement Department before the High Court, it was observed that any observation recorded on basis of such statements had no binding effect.
It is thus contended that order of this Court in sofar as it directed that the "respondents shall provide to the petitioners alternate property in the form of urban land/rural agricultural land or land or any urban commercial plot as against their claim" was not consistent with law on the subject. To ,that extent, the contention does find support from the above precedents and has merit.
As held in Ali Muhammad's case (Supra), such a direction did not confer any "right upon a person in whose favour such a.m order or direction is passed meaning thereby that only lawful order or to be implemented." The direction thus issued by this Court on 6-6-1995 reproduced above was not consistent with the law, and writ in the nature of mandamus could not be issued. The Court could only direct the respondent in terms of Article 199(1)(a)(i) of the Constitution to do that only as was required by law to be done. Reliance on M.A. Hafeez Khan and 9 others v. Riaz Ahmed Mehra and 3 others (1983 SCM R 803) was in apt inasmuch as the said case out of an order of the Deputy Custodian dated 24-10-1960, resulting in Cancellation of the transfer. By that time the laws had not been repealed.
12. The contention of the learned counsel for the transferees that the Department itself was contributory for the situation in which the transferee had been placed, has already been taken note of. They were entitled to have their grievance redressed but not in the form of allotment of the land which was not permissible under the law. The course appropriate and open under the law for this Court would have been to remit the matter to the Chief Settlement Commissioner with the direction to redress the grievance of the transferees in accordance with law who would have then taken such steps as permissible in law. The direction contained in judgment dated 6-6-1995 thus needs - to be modified accordingly, with the direction to the Chief Settlement Commissioner to redress the grievance of the transferee to compensate them in accordance with law.
13.Land measuring 428 Kanals, 5 Martas which is situated in. the localities like Ichhra and other Urban/Municipal areas of Lahore has been allotted at a ridiculously low and negligible price. It is not difficult to infer that available land has been doled out in the garb of order dated 6-6-1995 without application of conscious mind. Be that as it may, since the allotments purport to have been made in pursuance of the direction contained in order dated 6-6-1995 of this Court which direction has, been recalled and modified, the allotments cannot stand in law and should crumble and fall down with the removal of the foundation. Objection as to delay and laches in challenging such allotments in the circumstances hardly would be tenable. The precedents cited by the learned counsel for the transferees had their own peculiar circumstances and are not attracted to the facts of the instant case.
It is, however, clarified that merits of assertion of the petitioner in W.P. No, 119-R of 1996 and W.P.
No,22-R of 2001 have not been examined nor was it necessary in the context of the controversy. The cancellation of the allotments made in favour of the respondents would not ipso facto be considered to have established their entitlement. These two petitions (W.P.No,119-R of 1996 and W.P.No,22-R of 2001) are disposed of with the above rider and observations.
14. As a result of the above, C.M No,1 of 1998 is accepted and disposed of with the observation contained in paragraph No,12 above whereas W.P. No,11-R of 1999 W.P. No,12-R of 1999, W.P. No, 13-R of 1999, W.P. No, 14-R of 1999 ", W.P. No,15-R of 1999, and W.P. No, 16-R of 1999 are accepted declaring the allotments of the land made in favour of the respondents therein as illegal and without lawful authority. No order as to costs.