TASSADUQ HUSSAIN JILANI, J.~ Through this Constitutional petition, petitioner has challenged the order dated 19.12.1985 passed by the ADC(G)/Deputy Settlement Commissioner, Vehari vide which he held that Ghulam Nabi allottee had surrendered his rights in favour of the respondents and subsequent transaction made by him in favour of the petitioner was not valid in law.
2. Facts in brief are that the petitioner obtained property subject-matter of this petition through PTD dated 28.6.1983. This transfer order was set aside by the Member Board of Revenue, Punjab and an intimation to that effect was conveyed to the petitioner, vide letter dated 5.1.1984 from the Additional Settlement Commissioner (Urban) Punjab which reads as under:- "The Member Board of Revenue/Chief Settlement Commissioner, has been pleased to order that T.O. No. 86509, dated 28.6.1983 which was issued in your favour in respect of 4/16 share of property No. H/144 Burewala, obtained by concealment of facts and fraudulent means may be cancelled.
You are, therefore, directed to surrender the T.O. To the Deputy Settlement Commissioner, Multan."
2. On petitioner's application to the learned Member Board of Revenue, the afore-referred order was withdrawn on 26.1.1984 and the DSC Multan was directed to issue show-cause notices to the affected parties and then proceed further in that regard, It was pursuant to this order that the impugned order was passed.
3. Learned counsel for the petitioner has challenged the impugned order on the following grounds:- -
(i) that Ghulam Nabi, the original transferee of the property in question although had surrendered his rights in favour of Sahibun Nisa and others but the deed of association was rejected by the DSC and, therefore, there had never been a valid transfer in favour of the respondents. The said Ghulam Nabi had transferred the property in favour of the petitioner on 5.6.1983 on which date he appeared before the competent authority and made a statement to that effect whereafter on 28.6.1983 T.O.
Was issued in favour of the petitioner and that the DSC, having once issued the afore-referred order had become functus officio and neither the Member Board of Revenue could have remanded the case to him nor he could pass the impugned order, In support of the submissions, learned counsel, relied on Mistri Abdu! Aziz v. Mistri Muhammad Yasin (1982 SGMR 1083), Syed Wajihul Hassan Zaidi v. Government of the Punjab (1997 SCM R 1901) and Nawabzada Zafar AH Khan v. Chief Settlement Commissioner (1999 SCM R 1719);
(ii) that the so-called Association Deed (Ishrak Nama) dated 20.8.1963 would not be a valid transfer deed as the same stood rejected by the Deputy Settlement Commissioner which order finds mention on the top of the said document. The property in question was available for allotment as it had not been disposed of that the original transferee, namely, Ghulam Nabi on 12.5.1983 executed a surrendered deed in favour of the petitioner which is endorsed by Indemnity Bond issued by him on 22.6.1983. The said Ghulam Nabi find an application before the DSC on 22.6.1983 in confirmation of the afore-referred position and thereafter he himself appeared to make a statement. The Deputy Settlement Commissioner considering the afore-referred circumstances approved the agreement of surrender vide order dated 26.6.1983 whereafter transfer was issued in favour of the petitioner. These documents are as Annexures-A/1 to A/2 with the petition and also are the part of official record of the settlement department. The order passed in favour of the petitioner being valid order and the rights accrued therefrom, it was contended, could not have been interfered with.
4. Learned counsel for the respondents, on the other hand, defended the impugned order by submitting that the original transferee of the land, namely, Ghulam Nabi had executed an Ishrak Nama (deed of association) in favour of the respondents which was tendered before the Deputy Settlement Commissioner who adjusted it in favour of the respondents which is evident from the endorsement on the top of the said document of association; that the petitioner through under hand means managed to temper with the record and by over-writing on the word "adjusted" he made it "rejected". He added that the factum of adjustment is evident form the following:-
(i) there are entries in the compensation book of the answering respondents Nos. 6, 7, 8, which correspond with the terms of the association deed;
(ii) that alongwith association deed, the respondents had find an application with the prayer that the adjustment be made in terms of the Association.
The afore-referred documents were annexed alongwith the written statement find by the respondents. He further submitted that in the face of the afore-referred factual background, no transfer order could have been passed in petitioner's favour and any order passed could not stand the test of judicial scrutiny. The transfer made, it was contended, was completely devoid of any lawful authority and, therefore, was rightly set aside by the Deputy Settlement Commissioner, In support of the. Submissions made, learned counsel for the respondents relied on Muhammad Shafi v. Sardar Noor Muhammad (1989 SCM R 728) and Mst. Allah Rakhi v. Add!. Settlement Commissioner (1995 SCM R 1017).
5. Learned counsel for the Federal Government, on the other hand, having . Perused the record of the Settlement Department, submitted that at page 391 of the settlement life there is a registered agreement dated 5.2.1963 between Ghulam Nabi and respondents in terms of which the property in question had been agreed to be transferred to the latter; that the Ishrak Nama (dead of association) was in confirmation of this registered agreement; that there is nothing on record to suggest that the said agreement was rescinded and that the impugned order was passed pursuant to the application made by the petitioner himself and he is estopped to raise the question of jurisdiction.
Heard.
6. There is no cavil to the proposition that after the issuance of transfer order, the settlement authorities are rendered functus officio and the property vests in the name of the transferee but the moot point in the instant case is whether finality could be attached to an order which reflects an inherent defect and has been passed either on account of concealment of facts or by tempering of record. The precedent case-law to which reference has been made by petitioner's learned counsel is distinguishable on factual plan arid may not be of much avail to the petitioner.
For instance in 1982 SCM R 1083, the PTD was not interfered with as the august Supreme Court was of the view (at page 1084):- "One of the pleas, which goes to the root of the case, taken before the High Court, is that the agreement of association in his favour was approved; but the petitioner failed to establish that it was duly find and approved by any settlement authority. This being the case, the question of fraud does not arise as the first respondent was free to enter into the second agreement of association for the transfer of his rights in favour of the second respondent; and as the PTD had been issued it assumed finality qua the transfer of the plot in his favour."
The ratio laid down in 1997 SCM R 1901 is not supportive of the stand taken by the petitioner, In the said case the Hon'ble Supreme Court upheld the order of the High Court wherein it was held that the claimant had obtained surplus land and other areas illegally and by manipulation from forum which under the law had no jurisdiction, In that case, the consideration of equity prevailed over the compulsion of technicalities and relying on a judgment of the Indian Supreme Court reported in AIR 1982 SC 1493, it was observed as under:-- "if equitable situation demands after legal formulations not to take controversy to its logical end, the Supreme Court would be failing in duty if it omits equitable consideration and moulds the final order merely to the exercise of its extraordinary jurisdiction."
In 1999 SCM R 1719 the question raised before the Court was whether any petition freshly instituted during the year 1 990 could be deemed as pending matter merely because it had been find by persons claiming to be aggrieved on the basis of general remarks appearing in a judgment of this Court as far back as 19.7.1962. The august Supreme Court, at page 1 741, held as under:- "The Settlement or Rehabilitation authorities by express positive assertion have no jurisdiction to entertain any fresh petition or representation, In the present case Undisputedly question of entitlement concerning agricultural property left over by Nawab Faiz Ali Khan in Patiala State was neither remanded by this Court in the above judgment, dated 19th July, 1962 nor any such directions were made by the High Court while dismissing the Petition No. 121 -R of 1989 on 11.2.1990, whereby notified officer on its strength could commence proceedings. Therefore, any petition or representation find by the petitioners with regard to matter which otherwise stood finalized long back or even where aggrieved person may believe to have legitimate claim, same under the law could not be entertained by Chief Settlement Commissioner or the Notified Officer or any other Settlement Authority by virtue of 'The Repealing Act'. Therefore, proceedings drawn by the Settlement Commissioner which culminated in passing of order dated 26.2.1992 were devoid of lawful authority and deemed to have no legal effect. Therefore, on the established principle of law entire edifice constructed over it shall automatically crumble and fall to the ground."
This judgment is also of no avail to the petitioner as he procured the order much after the Repealing Act, 1975.
7. The finality to a PTD pre-supposes existence of jurisdictional facts. If it shown that the PTD was issued on the basis of a tempering record or its is found that the property was not available for allotment, then no finality can be attached to such an order and the settlement authorities do not become functus officio. This is in line with the law laid down in Syed Ahmad Shah v. Haji Fazal Rahim (1975 SCM R 268) and Muhammad Anwar Khan v. M.A. Wasti, etc. (1975 SCM R 372). Both the parties through miscellaneous applications, placed on record certified copies of certain documents which are part of the Settlement Record, this Court deemed it imperative, in the interest of justice, to examine the record. Admittedly, the original transferee, namely, Ghulam Nabi did execute the association deed. The case of the petitioner is that it was rejected whereas respondents asserted that it was adjusted. The association deed is at page 79 of the settlement record. A bare perusal of which shows that on the top of the association deed which is on a stamp paper, there is an endorsement to the effect "adjusted" but there is an overwriting on alphabet "A" to convert into "R" but this over writing is apparent on a close scrutiny as it is with a different ink. The stand of the respondents is supported by agreement deed dated 20.8.1963 which is of the same date i.e. 20.8.1963 on top of which is written "adjusted". This is corroborated by the entires made in the Compensation Book copies which were placed on record in the written statement find by the respondents as R/5 to R/7. This factual assertion was not controverted by the petitioner and this aspect finds further strength from the perusal of the record. At page 55 there is an order of the Deputy Settlement Commissioner dated 8.4.1984 who having examined the Compensation Books, found as under:- "However CB No. 189831 has not been received alongwith CBs, but the-, adjustment of Rs.7931/- has been shown transferred in CB No. 265826 of Abdul Rehman the original auction purchaser.
Adjustment of Rs. 15362/- is shown in the following CBs:- "1. CB No. 265820 PPX-1916 Mst. Hasham Bibi 1966/-
2. " 265821 PPX-1917 Mst. Zainab 5289/-
3. " 265822 PPX-1918 Abdul Samad 8107/- 15362/- {{TABLE}} As such Abdul Rehman, etc. Had paid the transfer price of 4/16 share surrendered in their favour of by Ghulam Nabi as for back as in 1 963."
8. An analysis of the afore-referred resume of facts would indicate that an association deed was tendered before the Deputy Settlement Commissioner; that it was acted upon as there are corresponding entries in the Compensation Books; that notwithstanding the afore-referred background a surrender deed was procured from Ghulam Nabi. He was made to appear before the Deputy Settlement Commissioner and the latter, without examining the record, issue a transfer order in favour of the petitioner which, on the face of it, was without jurisdiction and had rightly been set aside by the DSC after hearing both the parties, In Mst. Allah Rakhi v. Additional Settlement Commissioner, Multan and 4 others (1995 SCM R 1017) leave was refused by the august Supreme Court and it was held, at page 1020, as under:- "The only dispute was regarding payment of the consideration. He has established on the record the tendering of agreement of association between him and respondents Nos. 4 and 5, and the adjustment of the amount from the compensation book in lieu of the price for the suit shop and it was the function of the Settlement Authorities to make the necessary alteration in their record and Dr. Mushahid AN had nothing to do further in the matter of adjustment, Mst. Allah Rakhi., petitioner No. 1, applied for the transfer of the suit shop much after the order of the Chief Settlement Commissioner and the filing of the agreement of association, and therefore, her prayer for the transfer of the shop could not be legally considered, as the shop was not available for transfer and the allotment order in her favour being in ignorance of the earlier order of the Chief Settlement Commissioner, duly accepted and acted upon by respondent No. 3, was without lawful authority and jurisdiction."
9. For what has been discussed above, the impugned order is in accord with consideration of equity, It is neither arbitrary nor does it reflect any jurisdictional defect to warrant interference under Article 199 of the Constitution. This petition having no merit is, therefore, dismissed.