' SABIHUDDIN AHMED, J.---This is an application under section 12(2), C.P.C. Moved by the Member, Land Utilization Board of Revenue, Sindh, seeking to call in question the order of this Court dated 7- 7-1997 disposing of the above petition. By way of necessary background it may be stated that the 7 petitioners had filed claims prior to 1975 for allotment of properties under the Evacuee Properties and Displaced Persons Laws. Apparently no allotments were made in favour of the petitioners till the repeal of the Evacuee Properties and Displaced Persons (Repeal) Act, 1975. However, on different dates between 1993 and 1996, the Secretary (R.S. And E.P.) Board of Revenue passed different orders allotting various pieces of lands to the petitioners. Nevertheless, since physical possession of land was not delivered to the petitioners. They approached this Court through a petition under Article 199 of the Constitution (being C.P.No,1315 of 1997 praying for a declaration that the failure of the Deputy Commissioner, Karachi East, (respondent No,2) in not allotting, transferring and mutating lands in favour of the petitioners was mala tide and for directions to the respondents to give effect to the orders of transfer of mutation of record of rights in favour of the petitioners.
2. The petition came up for hearing before a Division Bench of this Court and upon an undertaking on behalf of the respondents, that the directions of the Secretary, Land Utilization Department dated 28-10-1996 to the Deputy Commissioner, Karachi East, directing implementation of orders would be given effect within 15 days, the petition was disposed of in terms of such undertaking.
Thereafter, the petitioners filed C.M.A. 813 of 1998 seeking implementation of the order dated 7-7- 1997 which was disposed of by a consent order, dated 9-6-1998 to the effect that the earlier order, dated 7-7-1997 will be implemented by the Deputy 'Commissioner of Districts Central, South and West as well.
3. However, on 28-10-1998, the above application under section 12(2), C.P.C. Was moved praying that the two orders, dated 7-7-1997 and 9-6-1998 were procured through fraud, misrepresentation and suffered from absence of jurisdiction. This application was argued before us at great length by Mr. Abdul Hafeez Pirzada, Mr. Makhdoom Ali Khan and Miss Sana Minhas on behalf of the applicants and strenuously contested by Mr. Mushtaque Ahmed Memon appearing for the petitioners. Learned counsel were also kind enough to provide us with written synopsis in support of their respective contentions.
4. Mr. Abdul Hafeez Pirzada learned counsel for the applicant emphatically argued that 769 acres of urban land vesting in the Provincial Government had been fraudulently allotted by officers of the Board of Revenue to the petitioners and through concealment of factual and legal position a stamp of legality was sought to be conferred through the impugned order. Alternatively it was contended that the impugned order of this Court purporting to direct implementation of the orders of Revenue Officials which were themselves void ab initio rendered the order of the Court without jurisdiction which could be set aside under section 12(2), C.P.C.
5. Though a large number of issues were raised in their context, both Mr. Pirzada and Miss Sana Minhas, who argued' the case in the former's absence, on some dates of hearing agreed to focus on the following main contentions:--
(i) Upon the enforcement of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 all properties other than those attached to charitable, religious or educational trusts stood transferred to the Provincial Government and were no longer available for allotment to displaced persons, as such the allotments effected after the enforcement of the. Act were void and ab initio.
(ii) That at the time of the enforcement of the aforesaid repealed Act, 1975, no proceedings under the laws pertaining to evacuee properties or displaced persons were pending before any Court or Authority which could be subsequently decided by Officers notified by the Provincial Government under section 2(2) of the Act.
(iii) That in any event even if it be assumed that the verified claims of the petitioners could be treated as pending proceedings in terms of section 2(2) of the Repealed Act 1975, the officers passing the orders in favour of the petitioners was not competent to do so in terms of the Notification dated 15-9-1985 conferring authority for deciding pending proceedings.
(iv) That in any event since no specific allotment of property had been made in favour of the petitioners at the time of enforcement of the Repealed Act, 1975 they could at best only be granted cash compensation against their verified claims.
(v) That the properties allotted to the petitioners are building sites within the urban area of Karachi, which could under no circumstances be disposed of except through public auction.
5. On the other hand Mr. Mushtaque Ahmed Memon learned counsel for the petitioners apart from meeting the above contentions emphatically argued that even if the orders passed by the Board of Revenue Officers were wrong in law, without jurisdiction or procured through misrepresentation and concealment of facts, they could not be set aside under these proceedings. He contended that section 12(2), C.P.C. Could be attracted only if it could be shown that the order of this Court as distinguished from the orders of the Settlement Authorities, had been obtained through fraud and misrepresentation or were otherwise without jurisdiction.
6. To appreciate the respective contention of the learned counsel, it may be proper to refer to certain established facts and the relevant legal background. The petitioners were displaced persons in terms of the Registration of Claims (Displaced Persons) Act, 1956 (since repealed by the Act of 1975) and had submitted their claims under section 5 of the Act. Such claims in respect of urban properties and agricultural lands were verified by the concerned authorities while the Act was still in force. Nevertheless, no transfer of evacuee property in their favour had taken place either under section 12 of the Displaced Persons (Land Settlement) Act, 1958 or under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 till both these Statutes were repealed in 1975. It may also be pertinent to mention that under sections 4 and 5 of the Land Settlement Act, the Government was enabled to acquire any evacuee land which hitherto vested in the Custodian of Evacuee Properties and to create compensation pools for the purpose of compensating displaced persons whose claims have been verified. Under section 12, it could inter alia transfer such land to displaced persons. Likewise under section 3 of the Displaced. Persons (Compensation and Rehabilitation) Act, 1958, evacuee property other than agricultural land could be acquired by the Government and compensation pool was established under section 4 wherefrom properties could be transferred under section 10 according to various settlement schemes. In the instant case no transfer under either of the two laws had taken place before above Statutes were repealed.
7. It may now be pertinent to briefly examine the provisions of the Repealing Act of 1975. Under section 2(1) a number of laws including three Statutes mentioned above stand repealed. Section 2(2), however, Which appears to protect pending proceedings and stipulated that all proceedings which may be pending before the Authorities appointed under the repealed Statutes or such cases which would have been remanded to such Authorities by the Supreme Court or High Court in the absence of such repeal will be decided by such officers as may be notified by the Provincial Government. Section 3(1) provides that all properties other than those attached to charitable, religious, or educational trusts or institutions which were available for disposal immediately before the repeal of the Statutes or may become so available as consequences of an order passed by the notified officer shall stand transferred to the Provincial Government on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government. It further stipulates that such urban properties may be disposed of by the Provincial Government under a scheme to be prepared by it and rural properties by the Board of Revenue of a Province under a scheme to be prepared by the Provincial Government. The proviso to section 3(1), however, requires that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973, shall first be offered for sale to such persons unless an order of ejectment has been passed against him in respect of such land. Section 4 deals with residual and provides that work regarding documentation, recovery of outstanding transfer price or mortgage money of such property already disposed of shall stand transferred to the Board of Revenue.
8. Against the above background the first important question to be decided is whether any proceedings were pending in terms of section 2 of the repealing Act in respect of which orders of allotment could be passed, by Secretary (R.S. & E.P.) Board of Revenue. Mr. Pirzada referred to the words that "this case shall be deemed to be a case pending in the department", contained in the orders passed by this officer. He argued that the word "deemed" as has been held in a number of pronouncements of the superior Courts presupposes that a state of the affairs does not actually exist, but it is assumed to exist through a legal fiction. Such legal fiction according to learned counsel could only be created by statutory intendment and not an executive fiat. The legal position is indeed well-founded but we are not inclined to attach much importance to it inasmuch as the opinion of an executive officer neither lays down the law nor creates an estoppel. It must, therefore, be independently examined whether in the circumstances of the case any proceedings could be deemed to be pending in accordance with the requirements of section 2(2) of the 1975 Act. The admitted factual position appears to be that the petitioner claims submitted before a competent Authority under the Registration of Claims (Displaced Persons) Act, 1956 and upon verification thereof entitlement certificates were issued prior to coming in force of the Act. However, there is nothing on record to indicate that appropriate applications for allotment of land or urban immovable properties were actually submitted under the Land Settlement or Compensation and Rehabilitation Act of 1958.
9. Nevertheless, Mr. Mushtaque Ahmed Memon learned counsel for the petitioners strenuously argued that pending proceedings for the purpose of section 2(2) of the repealed Act did not necessarily mean judicial or quasi-judicial proceedings before Settlement Authorities and even executive proceedings seeking allotment of properties were covered by the expression. In support of his contention has applied upon a judgment of a 3-member Bench Honourable Supreme Court Nawab Din v. Member, Board of Revenue (PLD 1979 SC 846) where the contention that the word "proceedings" meant only judicial proceedings and was repelled situation where certain produce index units of claim holder had remained unsatisfied and he wanted allotment of land against the same. It was observed: "At this place we would like to observe that connotation of word 'proceedings' is to be understood with reference to the text, the law, the subject-matter, and the intention of the Legislature discernible from the overall examination of the aims and objects of the relevant enactment under scrutiny. In our view, subsections (2) and (3) of section 2 leave no room for doubt, that their intention was to allow the cases of old applicants for allotment of land which were pending on the relevant date of repeal, to continue so as to be disposed of in accordance with the provisions of the Act repealed to which the proceedings related. There is no ambiguity in this case that the application of Rehmatullah for claiming the land in dispute was under Act XLVII of 1959 and as such it was to continue under the same Act despite its repeal. When the words used in the statute are 'all proceedings' it is not justified to diminish the totality of those proceedings by introducing jurisprudential concepts, for example of judicial proceedings, quashi-judicial proceedings, executive proceedings, administrative proceedings, penal proceedings, fiscal proceedings, and proceedings before a Court etc."
' The same view appears to have been taken in Aligarh Muslim University Old Boys Cooperative Housing Society v. Muhammad Hismuddin Ansari and others (1993 SCM R 1062).
10. On the other hand, however, Mr. Abdul Hafeez Pirzada learned, counsel for the applicant contended that the view that subsequent judgments of the Honourbale Supreme Court including those rendered by larger Bench did not uphold the right of a person to be allotted land after the enforcement of the repealing Act. He referred to the pronouncements in Syed Saifullah v. Board of Revenue, Balochistan (1991 SCM R 1255), wherein it was held as follows:-- "With the repeal of the Evacuee Laws in 1975, the unallotted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified Produce Index Units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming, was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio."
11. In Member, Board of Revenue v. Muhammad Mustafa and others (1993 SCM R 732), though Nawabdin's case was considered by two-Member Bench of the Honourable Supreme Court. The view taken seems to support Mr. Pirzada's contention. In this case the respondents who were informed, moved applications for allotment of specified land under sections 17 and 11 of the Land Settlement Act. These applications were granted by order, dated 13-8-1963, but it was set aside by the High Court on the ground that all have been passed by an officer, who was not delegated the requisite powers of the Chief Settlement Commissioner. They repeated their applications before the competent officer but they were rejected on 24-9-1969. Thereafter, they moved the superior Courts and without succeeding on merits were able to obtain some land under compromise.
However, with respect to their claim for the remaining units, the High Court made an order observing that:-- "As regards the balance units of the petitioners which are few hundred only and have not been settled all through these years notwithstanding that the proceedings had remained pending, it is directed that these shall be satisfied by allotment of land wherever it is available. The learned Member, Board of Revenue/Chief Settlement Commissioner is directed to see to it that the unfortunate claimants or their heirs are allotted available land anywhere in Punjab by his notified officer as soon as is possible within the next six months."
' On appeal, however, the Honourable Supreme Court proceeded to hold that proceedings pending could only be those instituted on an application under sections 10 and 11 of the Act and not the satisfaction of the pending claim as such. It was further added that if the resumed land had already allotted to somebody else, the respondent souls only entitled to cash award. It was further clarified that on being successful in their application, they could claim adjustment against the resumed land or alternative available land and the pendency of the claim itself did not amount to pending proceedings.
12. Moreover, in Muhammad Ramzan v. Member Revenue, C.S.S. And others (1997 SCM R 1635), decided by a larger (4 members) Bench of the Honourable Supreme Court. It was categorically held that after repeal of Evacuee laws no provisions were made for allotment of land against pending verified P.I.Us. It was further observed that pendency of proceedings within the meaning of section 2(2) of the repealed Act was not correlated with failure of authorities to satisfy any verified claim. The Court reiterated the view taken in Syed Saifullah v. Board of Revenue (1991 SCM R 1255), mentioned above as well as Member, Board of Revenue v. Muhammad Mustafa and others (1993 SCM R 732) where the judgment of the High Court had been set aside on the ground that pendency of a claim itself did not amount to pending proceedings. The Court further held that when the repealing Act became operative, there was no land available for adjustment against produce index units and the mere fact that in some matters justified or specified lands were under consideration or had not been carried out would not bring the grievance within the purview of section 2(2) of Act XIV of 1975, therefore, notified officer had no jurisdiction to allot or transfer the land or grant alternate lands against unadjusted verified claims.
13. Mr. Pirzada referred to judgment of the Honourable Supreme Court in Muhammad Saleem v.
Fazal Ahmed (1997 SCM R 315), Fazal Muhammad v. Khalid Hussain (1997 SCM R 1368), Muhammad Riasat v. Secretary Education (1997 SCM R 1626) and Baber Shahzad v. Saeed Akbar (1999 SCM R 2518) to content that in case of conflict the view of a larger Bench of the Supreme Court would prevail. Even otherwise, it is well-settled that the Supreme Court can always modify, its earlier view and when a particular view has been taken by larger Bench later in time the same would be treated as the law declared.
14. We have also been able to lay our hands on a very recent pronouncement of the Honourable Supreme Court in Ali Muhammad and others v. Chief Settlement Commissioner and others (2001 SCM R 1822) where their Lordships proceeded to consider the view taken in Nawab Din's case as well as the subsequent cases of Syed Saifullah and Muhammad Ramzan were discussed. With reference to Nawab Din's case their Lordships observed that the opinion of the Court was e;:pressed in terms of the following conclusion: "Though the whole emphasis of the learned counsel was on earlier portion of subsection (2) of section 2 of the Act XIV of 1975, which talked of and saved proceedings pending to be precise, before Settlement Officers under Land Settlement Act (XLVII of 1958) on the relevant date of its repeal, but the later portion of that subsection dealt with cases (to be) decided by the Supreme Court and the High Court after the repeal of that Act namely Land Settlement Act, and laid down that those shall also be decided accordingly by the authority mentioned therein. The present was a case of later category, which had been remanded by High Court on 21-5-1975 and there was thus no bar in finalizing its adjudication in terms of their order of remand. In that view of the matter the whole exercise by the learned counsel for the petitioner solely with reference to earlier portion of section 2(2) was not quite apt. However, our order shows that we have examined the case from whatever angle the proceedings after the remand order of the High Court do not suffer from any illegality whatsoever."
15. Nevertheless, in attempting to show that the observation of the Court had limited application and in preferring to follow the latter view taken in Muhammad Ramzan's case their Lordships proceeded to hold as under:-- "Examining the case of appellants in view of the observations made hereinabove it can be safely held that prior to 1st July, 1974 when evacuee laws/Regulations were repealed by the Act of 1975 the appellants never agitated their claims before any forum inasmuch as before invoking writ jurisdiction of High Court in year of 1989 they did not approach the notified authority under section 3(1) of Act 1975 for transfer of the land which was temporarily allotted to them as per their assertion. It may be noted that under this provision of Repealing Act Punjab Provincial Government had framed scheme for the disposal of urban as well as rural properties. It would mean that appellants were insisting for the transfer of evacuee agricultural (urban) land (which by the time has attained the status of a non-evacuee property) merely on the strength of verified unutilized/left over PIUs. Whereas unutilized PIUs in favour of appellants would not constitute a pending case under section 2(2) of Act 1975 in view of the dictum laid down by this Court in Muhammad Ramzan's case (ibid) herein it was held as follows: ' The claimant with unsatisfied entitlement could resort to any other remain available under the law, it were not entitled to obtain allotment of urban land in satisfaction of pending units as alternate land/measure or otherwise.'
' It is also important to note in above-referred case this Court examined the jurisdiction of a Notified Officer to grant relief to a claimant and held thus: 'Besides, it was mandatory condition for grant or allotment of land that proceedings must be pending, which could be dealt with and finalized by the 'Notified Officer' within the four corners of law and jurisdiction vested in him. Undoubtedly in all the matters under consideration, claims of respondents had not been fully adjusted or lands allocated to them for being transferred in their favour were not available for one or the other reasons. Therefore, without much comments relying on the instructive observations in cases of Member, Board of Revenue v. Muhammad Mustafa and others (1993 SCM R 732), Syed Saifullah v. Board of Revenue, Balochistan and others (1991 SCM R 1255) and Muhammad Ashraf Khan and others v. Administrator (RP)/Settlement Commissioner, Lahore and others (1987 SCM R 1358) we are inclined to hold that on the promulgation of the 'Notification', dated 16th May, 1973 (supra) no agricultural urban land existed or was available for disposal. Moreover, the date when the repealing Act became operative there was no land available for adjustment against produce index units. Mere fact that in some matters regarding adjustment of specified land were under consideration or had not been carried out would not bring the grievance within the purview of section 2(2) of Act XIV of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands against unadjusted verified units'."
16. In the circumstances in view of, the several subsequent pronouncements of the Honourable Supreme Court including one delivered by larger Bench, we are constrained to observe that the observations relied upon by Mr. Mushtaque Ahmed Memon cannot be treated as good law and in any event the mere fact that certain produce index units were unutilized against the petitioners verified claims at the time of the enforcement of the 1975 Act could not bring their case within the scope of the expression "pending proceedings" and entitled them to allotment of land.
17. Mr. Pirzada further argued that all available urban evacuee land had been declared as building sides even prior to the enforcement of the 1975 Act, it could not be disposed of in any manner except open auction even under the unrepealed laws. Indeed the notification to such effect was issued by the Chief Settlement Commissioner Punjab of 16-5-1973 and has been discussed in the case of Muhammad Ramzan and Ali Muhammad referred to above. Nevertheless, since no similar notification in Sindh has been brought to our notice, we would refrain from dilating on this question.
18. Alternatively Mr. Mushtaque Ahmed Memon argued that apart from pending proceedings, strictly in terms of section 2(2) of the repealing Act, the repeal of the Evacuee Properties Laws, did not affect a variety of residual work which was being performed by Settlement Authorities, prior to the Repealing Act. And upon the enforcement of such Act stood transferred to the Board of Revenue under section 4 of the Repealing Act. He, therefore, contended that even if the petitioners verified claim, which had remained unsatisfied, was not to be treated as "pending proceedings" for the purpose of section 2(2) the concerned officer continued to enjoy the power to decide the petitioners request for grant of land on the basis of such claim irrespective of the repeal of the Evacuee law. The argument is indeed ingenuous but we regret out inability to accept it. In the first instance section 4 appears to be relate to work regarding documentation recovery of outstanding transfer price, rent or mortgaged money of such property already disposed of and discharge of misliability out of these recoveries. We are extremely doubtful if the expression "residual work" in the given context can be given such a wide meaning as allotment of property itself.
19. Secondly Miss Sana Minhas brought to our attention the Evacuee Properties (Residual Work)
Disposal Rules, 1978, framed under section 5 of the Repealing Act, which were deemed to have come into force. From the commencement of the repealing Act, Rule 2(u) describes unsettled units to mean produce index units out of the produced index units shown in the entitlement certificate issued to claimant against which no allotment of Evacuee Agricultural Land or garden has been made. Rule 5 stipulates that transfer order referred to in the Settlement Scheme No, VIII under the Compensation and Rehabilitation Act would confer full proprietary rights upon the transferee on payment of the required price. Similarly rule 6 confers such rights upon a claimant or allottees of Evacuee Agricultural Land or garden. Rule 8, however, provides for cash compensation in respect of any settled units after verification from the claimant file. In the circumstances there appears to be a great deal of strength in the contention of Miss Sana Minhas that since no specific agricultural land or urban property had been allotted to the petitioners all that they could claim was cash compensation in respect of their unsettled units.
20. Mr. Mushtaque Ahmed Memon, learned counsel for the petitioners, however, emphatically argued that even if the orders allotting lands to the petitioners were found to be illegal, without jurisdiction or having been procured by fraud of misrepresentation, they could not be set aside through and application under section 12(2), C.P.C. The precise contention was that the factors upon which the order passed by a Court could be recalled must by present in the proceedings before the Court itself. In other words, it might have been possible to recall such allotment orders had they been passed by this Court itself. However, in the instant case the applicants never attempted to recall the allotment orders themselves. The petitioners had approached the Court for a direction seeking implementation of the orders passed by statutory functionaries and no element of fraud or misrepresentation in the proceedings before this Court was involved. The orders spoke for themselves and the law officer appearing for the respondents conceded that they would be given effect. He also referred to some correspondence indicating that different officers in the hierarchy had expressed the view that the orders had been competently passed and needed to be implemented.
21. After we had concluded the hearing of the matter and reserved judgment Mr. Mushtaque Ahmed Memon brought to our attention a very recent pronouncement of a Division Bench of this Court in Special H.C.A. No,159 of 2001 (Dadabhoy Cement Industries Ltd. v. National Development Finance Corporation). In this very elaborate judgment the scope and effect of section 12(2), C.P.C.
Has been discussed in great length. Learned counsel relied upon the observation to the effect that allegations of fraud and misrepresentation must be made with great particularity and must relate to the proceedings called in question and ought to be proved beyond a reasonable doubt.
22. Indeed there could be no cavil with the legal proposition and there is great force ih the contention of the learned counsel that fraud per se could be discerned from the impugned order.
He is also right in contending that the alleged fraud must relate to the proceedings before this Court and not in obtaining orders from other functionaries. Nevertheless, section 12(2), C.P.C. Also enables this Court to recall an order on ground of absence of jurisdiction. What needs to be considered here is that whether this Court was vested with the jurisdiction to pass an impugned order. The jurisdiction of this Court under Article 199 of the Constitution in the present context is confined to issuance of directions to public functionaries to do what the law requires them to do.
Since we have come to the conclusion that the unutilized produce index units available with petitioners could not in law be treated a spending proceedings in view of the authoritative pronouncements of the Honourable Supreme Court, no directions to give effect to an order purporting to treat them as such could be given. We are, therefore, of the view that the order dated 7-7-1997 passed by this Court was without jurisdiction and as such we constrained to allow this application and recall the same order. However, since Mr. Memon wishes to approach the Hon'ble Supreme Court and seek interim relief, we will order that this order shall take effect after three weeks from today.