By this petition under Article 201 of the Interim Constitution of the Islamic Republic of Pakistan the petitioner Mat. Tauheed-un.Nisa, an auction purchaser of a plot, in. Quetta Town has assailed the order of the Chief Settlement Commissioner/Member, Board of Revenue Baluchistan and prayed that the said order be declared to have been passed without lawful authority and thus is of no legal effect.
2. This petition emanates from the order of the Chief Settlement Com--missioner and Member--- Board of Revenue, Baluchistan dated (Nil) October, 1"72, whereby he had cancelled the Permanent Cruder Deed in respect of a plot of the petitioner and ordered its transfer to the respondent No. 2.
3. The necessary fact leading to this petition-are that there is a plot beating Lhasra No. 3547/7is53- 3547/7854, situated on Shawak Shah Road, Quetta. The respondent No. 2 Khudadad Khan, a Fuel Wood dealer was and is in occupation of the premises since Partition of the subcontinent, On 30th November, 1959, he had filed P -Form for obtaining it. Before any decision in respect of the P-Form could be taken, the Settlement Department by an open auction transferred the plot to the petitioner on 13th October, 1960, the P-Porm was rejected. However, subsequently on 2eth December, 1960 the P -Form. Earlier to the auction of the plot, the Chief Settlement Commissioner had issued directions that some plots including the plot in dispute, in possession of the Fuel Wood dealers in Quetta Town should be transferred to their respective occupants. But, before the compliance of the direction eras made the Deputy Settlement Commissioner disposed of the plot to the petitioner. However, compliance of the above said directions, the Deputy Settlement Commissioner, ordered transfer of the plot in favour of the respondent No 2 on 14th April 1961, and recalled the previous provisional Transfer ordered issued in favour of the petitioner. The petitioner being aggravated: submitted an appeal to the Additional Settlement Commissioner, who cancelled the tatter transfer order and maintained the former transfer in favour of the petitioner.
The Settlement Commissioner also upheld the decision of Additional Settlement Commissioner on Ist July, 1965.
The respondent No. 2 filed writ petition in the High Court of West Pakistan, which was dismissed on 27th July 1967. He then sought leave for appeal before the Supreme Court of Pakistan, assailing the decision of High Court, but, his this request was turned down on lot February 1968. The respondent No.1 then filed a declaratory suit in the Court of Civil Judge, Quetta. Which was dismissed. His appeal before the District Judge, Quetta also failed.. In order to get rid of the spider's web the petitioner instituted ejectment proceedings against the respondent No 2, in the Court of Rent Controller, Quetta. Who ordered respondents, ejectment somewhere in September 1072.
However, some way or the other the respondent No. 2 eventually sued in getting cancelled the Permanent Transfer Deed of the petitioner and got the plot for himself by order of the Chief Settlement Commissioner/Member, Board of Revenue. Baluchistan in October; 1972. This petition is directed against this order of the Chief Settlement Commissioner, Baluchistan.
5. Mr. Iftithar Ahmed, learned counsel for the petitioner at the first in state argued that after the Issuance of the Permanent Transfer Deed, the Settlement Authorities became functus officio and had no authority to cancel it. The contention is not without force. It 1s settled principle that on the Permanent Transfer Deed is issued by the Settlement Authorities, then the property go.,& out of the compensation pool. The suzerain of the Settlement Authorities ceases over such property except in very rare and exceptional case. In Sadar Din v.ElahiBaksh and another (PLD 1976 Lah. 1) it was held :- "Permanent Transfer Deed issued, the Settlement Authorities became functus oficio even if case be one of fraud or misrepresentation."
The same proposition were discussed in Mst. Hajiani Fatima Bai and 6 others v. Lbrahim and 13 others (P I. 0 1972 Kar. 610), Syed Murried Hussain Shah v. Maui Mwmmmad Yousaf All e'sd another (1974 SC MRS) and Muhammad Shaft v, Matt/ Din Khan and 3 others (PLD 1976 Lah, 17)
6. Mr. 1. H. B. Hanafi repudiated the contention of the petitioner and submitted that if the Permanent Transfer Deed was based on illegal orders, then it shall be null and void for all the purposes and at all times, and shall have no legal effect at all. Such Permanent Transfer Deed could be amenable to jurisdiction of the Settlement Authorities. The learned counsel relied on case of Yousaf A.I v.
Muhammad Aslam Zia and 2 others and Muhammad AslamZia and 2 others v. Yousaf A.I (P.L.D 1S C 104) where it has been held that:-- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority mating it, and no party can plead as final an order made i6 excess of the powers of the authority snaking 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 than, must, unless some statute or principle of law recognizing as legal tare 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 jurisdiction were void and not final within the meaning of section 13QB of the Rehabilitation Ordinance, and it was the Rehabilitation Commissioner's order ditecting ejectment of the respondents that became final in law."
7. The transfer in favour of the petitioner was made in open auction and approved by the Additional Settlement Commissioner and upheld by all the superior authorities. Even the same orders were not disturbed by High Court, and Supreme Court iii constitutional petition. As such it can not be ,aid that it was void or nod-eluietent order. Thotefore in my humble, view this authority does not help silo learned counwL Moreover, the facts of the instant case are quite different from the Not of the above case.
8. The neat contention of Mr. Lftikhar Ahmed was that later 13th of January 1962, the revisional jurisdictional oaf the Chief" Settlement Commis--sioner was snatched away 1 thereafter he had no jurisdiction to entertain certain or decide any case in revisional jurisdiction. He relied on authority reported Muhammad Shaft and another v. The Chief Multan and others (1974 SCMR 359), where it was held that, "the Chief Settlement Commis--sioner was devoid of jurisdiction to entertain revision petitions after 1 June 1962. "feeling trapped in spiders web, Mr. I. H. B Hanafi candidly C admitted the proposition that the Chief Settlement Commissioner, hal no jurisdiction to entertain or decide revision. 'the learned counsel. Thenstand that the Chief Settlement Commissioner hall the General powers of Superintendence and control under section 9(3) of the Displaced Persona Act of 1958. He said that such powers were analogous to the powers of the High Court contained in Attiele 102 of the old Constitution of 1962, in Article 205 of the Interim Constitution of Pakistan of 1972 and in Article 203 of the Constitution of 1973. He fortified his contention on the decisions of cases reported in Mst.Safia Begum v Abdul Hamid (PLD 1968 Lah. 1358)Karim Baksh Mst Mubarak jan (PLD 1970 Pesh. 169) Mst farida pawin v Qadeerudin Ahmaed Siddiqi (P L 13 1971 Kar. 119),and Abdul Rehaman v Mst chaman ara (PLD 1972 Kar 164) These authorities have no bearing on the instant case. This proposition was the subject matter of case reported in A.S Kazi v Government of Pakistan and 6 other (1973 SCMR 191). Where it was held ---that by no stretch of imagination can the exercise of the power of general superintend and control be extend to the force compliance of the illegal order . The chief settlement commissioner himself been denuded of his revisional power could not direct the settlement commissioner to person a case decided 10 years before, contrary to law and in obliging make a fresh order in accordance with the good wishes of the chief settlement commissioner.
9.Even otherwise, in this present case, no allegations of fraud or sir representation ace leveled against the petitioner for even arguments aske. This authority A. S. Kaziv. Government of Pakistan and 6 other is therefore quite relevant with circumstances of this case. There is nothing on the record to show that the Settlement Authority had acted in excess of jurisdiction of non-complied any provision of the relevant law.
10. The Member Board of Revenue, the respondent No.1.In reply submitted that no representation will be made on behalf of the Settlement Department. As regards the property file, it is stated that the relevant record was handed over to Mr. Farooq the then Reader and his signatures in token of receipt thereof exists on the record. Mr, Parooq is no more in service in Baluchistan and his whereabouts are not known, The present Reader has intimated that the relevant record is not traceable.
11. But in Court, Mr. Jaffar Maim, the learned counsel for respondent No. 1 frankly conceded that, the Chief Land Commissioner, had no revisional jurisdiction to pass the impugned order., but he submitted to adhere to the objections raised by Mr. I.H.B. Hanafi It its therefore established beyond shadow of doubt that the Chid Settipment Commissioner had no power to entertain or decide the revision petition.
12. In eke out to whatever has beenShall be said here after for elucidation of the issues, it in parineat to reproduce certain extracts from tile memo of Writ Petition No. 83/65, ( khudada Khan, Fuel Wood Merchant, Quetta v. Dspaty Settlement an Rehabilitation Commissioner, Qmata sand 3 ethers)here:---
(i) "That the so-called auction proceedings held by the respondent No. 1, in respect of the property in question whereby the same weds illegally transferred in favour --f the respondent No. 4, and the subsequent adverse orders passed by him, on the basis of the said proceedings, be declared as having been taken and made without lawful authority.
(ii) That the orders dated 15-6-1963, and! 1-7-19636 panned by the respondents loos. 2 and 3 respectively confirming the transfer of the property in favour of the respondent No. 4. And cancellation of the transfer documents of the applicant which had been issued to him in rasped of the property in question in accordance with the law by respondent No. 1, are also without regal authority, void and without jurisdiction.
(iii) The respondents Nos.1--3 be directed to cancel the transfer documents issued to respondent No. 4. And confirm the transfer of the property in favour of applicant in accordance with the provisions of law. Or any other appropriate order directions be issued as deemed fit and proper in the circumstances of the case, and cost of this application be awarded in favour of the applicant against the respondent.
13. The reply of the Settlement Authorities was under:-- "1t is stated that no representation will be made in the above smatter on behalf of the Settlement and Rehabilitation Department--- Additional Settlement Commissioner,
(land) Karachi.
14. The High Court in its decision observed :-- "The plot in dispute in Writ Petition No. 85/65 bears No. 4547/1853154, it measures 3909 sq.Ft. And is situated on Shawak Shah Road. Quetta.
The petitioner Khudadad Khan held this plot since 7-10-48 and carried on business of sale of fire- wood thereon, This petitioner also filed P-Form with the Settlement ice on 30-11-1959. However, this Perform was not considered and the plot was put to auction. This auction took place on 13-10-1960 and thereafter on 28-101960 the petitioner's P-form was rejected though the property already stood auctioned on this date. The petitioner, however, did not file any appeal against the order rejecting his P form. Notwithstanding the rejection of his P-form and the auction of the plot which had taken place in favour of respondent No. 4 already, the Deputy Settlement Commissioner transferred the plot on 22.2-1962 to the petitioner for which transfer a P. T. 0. Was issued on 14-4-1962. It may be mentioned that this auction wigs taken without canceling the P.P.T.O. Issued in favour of respondent No. 4. Respondent No. 4 then gave notes to the petition for payments of rentand it was then that petitioner came to know that there was a prior transfer of the plot in the existence in favour of respondent No.4 respondent No.4 went in appeal before the Additional Settlement Commissioner against the transfer of the plot to the petitioner. This appeal was decided on 16-6- 1973 The Additional Settlement Commissioner cancelled the transfer in favour of the petitioner but confirmed the transfer of the plot to the respondent No. 4 The petitioner---s revision application against this order was dismissed by the Settlement Commissioner on 1-7-1965.
Both the petitioners have attacked the orders of the Additional Settlement Commissioner and the Settlement Commissioner, and the transfers of the plots in dispute to respondent No. 1 in petition No 66/65 and to respondent No 4 in petition No 85/86 on several grounds. The main point however which arises in both these petitions is whether the two petitioners were at all entitled to the transfer of the disputed plots on their p forma filed under Settlement Scheme No VI. The relevanl provisions for the transfer of building after are paragraph 13 and 14 of the Schedule to the displaced persons (Compensation and Rehabiliation ) act, 1958 and a Settlement scheme No. VIframed under this Act Under Para. 13 of the Schedule an avacuee building aite may be transferred to a claimant displaced person or a non-claimant displaced persons or a local if such a person has raised a permanent building there com on payment of the market value of the point at the time of the allotment the transfer to an unauthorized occupant is also made permissible provided such a person pays a price equivalent to market value plus 50% of this value. Para 14 provides that all building sites not falling under para 13 shall be sold to the highest bidder in an unrestricted auction.
Settlement Scheme No VI by para 3 purports to define permanent building as follows.
(3)Permanent building means (a)Abuilding constructed under a plan approved by the public works department of the Central Government of West Pakistan Municipal Corporation or committee Cantonment Board Improvement trust or any other local body authorised by Government in this behalf or (b)A building constructed without such an approved plan, but subsequently approved by a competent authority or (c)A building for which plan has not been approved by a competent authority but which has been constructed with building material normally used in the non evacuee buildings in the locality where it is situated and covers at least one fourth of the area of the relevant building site or seventy five per cent. Of the maximum area allowed for construction under the rules framed by the local body concerned (d)Any other construction or class of construction which may be declared by the Chief Settlement commissioner as permanent building provided that a Deputy Settlement Commissioner may after adding an area not exceeding thrice the area comprised in a permanent construction and transferring it to the occupant according to prescribed terms dispose of the rest throuth unrestricted public auction With regard to this provision their Lordships of the Supreme Court have observed in the case of Mst.
Mahmoods Tashin v. Settlement and Rehabilitation Commissioner and others (PLD 1965 SC 618) that definition of permanent building in Scheme No. VI is not consistent with pare. 13 of the Schedule to the Displaced Persons Compensation and Rehabilitation Act, 1958, and that the words in para. 13 should be presumed to be used in ordinary sense. Therefore the expression "permanent building" should be construed in its ordinary sense and not in the extended sense which Scheme No. VI purport, to lay down. Accordingly, if the petitioners have raised permanent buildings on the two plots, they would be entitled to the transfer thereof. But their own admissions in the P-form filed by them go against the contention that the two petitioners constructed permanent buildings on the plots. The petitioner in Petition No. 66/65 stated under Item 12 of the prescribed application that he bad raised only two "Kucha rooms and compound wall" on the plots. The petitioner in Petition No. 85/65 likewise stated that only one kacha room and a Kitchen and been raised on the plot held by him. Thus, the petitioners) own case Is, as made out in their P-forms, that there ore only kacha construc--petition ore the disputed plots, and as such they could not be held to be entitled in any way to the transfer of these plots, But it is contended that on 17-11-1960 then Chief Settlement Commissioner issued a direction to transfer all the plots on which firewood stalls were situated to the occupants not-- withstanding the nature of the construction thereon. A copy of this memorandum has been filed in both the petitions. We have carefully looked at this memorandum and find ourselves in disagreement with the learned council that this memorandum in any way authorities the Deputy Settlement Commis--sioner to Ignore the provisions of paras. 13 and 14 of the Schedule to the Act for the disposal of evacuee building sties. The memorandum does not say that transfer of sites on which firewood stalls were situated should be made irrespective of the nature of the construction thereon. The memorandum merely lays down the method of evaluating the value of such plots for the purpose of transfer. In any case, this memorandum, If It purports to authorise the Deputy Settlement Commissioner to transfer these plots to persons who had merely raised kacha construction thereon, would be in violation of the provisions of the Schedule to the Act and cannot be given effect to.
It was then argued that it was not the requirement of law that evacuee building sites not falling under para. 13 of the Schedule should be put to unrestricted public auction. In this connection reliance was placed on a memorandum issued by the Chief Settlement Commissioner on 24-6- 1960, and published on page 153 of the old Settlement Manual. It is provided in this memorandum that if any person submits an application for deletion of a particular building site from the auction list and gives an underrating to such application that he is prepared to pay the average auction price plot plus 30% of such price, he may be treated to be eligible for the transfer of the site by negotiation. Mr. Yaqoob, the learned counsel for the petitioner in Petition No. 85/65, asserted that such applications were made by his client to the Settlement Commissioner. Copies of these applications have been filed as Annexures 8, 10 and 11. But there is no undertaking in these applications 8 that the petitioners would pay the average auction price plus 50 % of the price as value of the plot. The application, therefore, does not comply with the requirements of the memorandum dated 24-6-1960. Even otherwise, this memorandum is against the requirements of pare. 14 of the Schedule. The requirement of the law is that buildings sites not falling under para. 13 should be disposed of by unrestricted public auction. As held in Muhammad Amin v. Chief Settlement and Rehabilitation Commissioner, Karachi a others (PLD 1966 Kar. 91), this is a mandatory requirement; and disposal by negotiation is not permissible unless unrestricted auction fails In the disposal of evacuee properties.
It was then contended that the plot in Petition No. 85/65 was auctioned without disposing of the P- form of the petitioner. It may be so, and if the petitioner could show a good prints facie case before us that he was entitled to the transfer of the plot, there would be good ground for remanding the case to the Settlement Authorities for fresh adjudication. However, on the petitioners' own admissions that there are merely "Kacha" constructions on the plots there does not appear to be any possibility of the plots being transferred to the petitioners. The argument that the auction, without disposing of the P-form, is not valid, is only academic In the circumstances of this case. We do not, therefore, consider it necessary to remand the case to the Settlement authorities when the petitioners themselves admit that they did not raise any "permanent building" on the disputed plots. Mr. Yaqoob the learned counsel for the petitioner in Petition No. '85/65, further contended that he was deprived of the right of participating in the auction of the plot in question. We may frankly confess that we have not been able to appreciate this argument. It is not his case that the auction list was not duly advertised. The advertisement of the auction list is notice to all the persons who may desire to participate in the auctions of evacuee properties. We do not therefore, agree that this petitioner was in any way deprived of the right to take part in the auction of this plot.
15. The Supreme Court armed the. Decision of the High Court with observations ;- "Aggrieved by the aforesaid orders the petitioner moved the High Court under Article 98 of the Constitution contending that before the plot in his occupation was sold by auction to the respondent No. 44 the Settlement and Rehabilitation Commissioner had on his representation issued a stay order and that the transfer in his favour having received the sanction of then Chief Settlement and Rehabilitation Commissioner was not open to interference by the subordinate settlement authorities. Both the contentions were ruled out by the learned Judges as the petitioner bad admittedly not put up any permanent construction on the plot to which he laid claim and under the settlement scheme was not entitled to its transfer. The learned Judges also did not consider that the memorandum issued by Settlement and Rehabilitation Commissioner Quetta, was intended to override the provisions of parts. 13 and 14 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act. The writ petition was, accordingly, dismissed from which the petitioner seeks leave to appeal.
On hearing the learned counsel we find ourselves in agreement with the Settlement Authorities and the view formed by the learned Judges in the High Court that the memorandum dated the l7th November, 1960, Issued by the Secretary Urban to the Settlement Commissioner and Rehabilitation Commissioner, Quetta, did not authorise any departure from the Settlement Scheme No. VI. The petitioner admittedly not put up any permanent construction on the plot was therefore not entitled-to its transfer. In the absence of any entitlement for transfer, petitioner had no locus stands to move in the matter.
As to the stay order issued before the plot in dispute was sold by public auction to the respondent No. 4 we find that Annexure "R's" at pages 28 and 29 bears a note by the Deputy Settlement and Rehabilita--petition Commissioner dated the 4th October, 1960, recommending that the evacuee plots in the occupation of fuel wood merchants who are mostly locals and non-claimants may be sold to them at the prevailing market price plus 50 per cent. The Additional Settlement & Rehabilitation Commissioner forwarded the proposal to the Settlement Commissioner suggesting that in the meantime auction of the plots may be withheld. The proposal was approved by the Settlement Commissioner on 5.10-1960. The Deputy Settlement and Rehabilita--petition Commissioner again put up a note on 7-10-1960 that auction of plots may be withheld and these plots may be deleted from the list immediately which was initialled by the Additional Settlement and Rehabilitation Commissioner on 8th October, 1960. What happened after the 8th of October, 1960, is not known except that on 13th October, 1960, the auction was held and the plot in dispute was sold to the respondent No. 4 for Rs. 12.600. The officer incharge of the auction being none other than the same Deputy Settlement and Rehabilitation Commissioner it does not stand to reason that if the auction of the plot in dispute was stayed on 8-10-1960 why no effect was given to it.
Further after the suction was held the sale in favour of the respondent No. 4 was approved by the Additional Settlement and Rehabilitation Commissioner and a permanent transfer deed also issued in her name. These circumstances lead to the conclusion that either the stay order did not pertain to the plot in dispute or that the stay order issued before the 13th October, 1960, was subsequently counter-mended. However, as mentioned above, the petitioner himself having no entitlement to the transfer of the plot in dispute the validity of, the sale in favour of the respondent No. 4, was not open, to review in the writ petition.
For the foregoing reasons this petition has little merits and we hereby dismiss it."
16. To analyst the impugned order, in juxtaposition with the decision of the High Court and Supreme Court, it is reproduced here ;---- "I have considered the case very carefully and have also gone through the case law relied upon by the petitioner. I have come to the conclusion that :---
(a) In view of stay order dated 5-10-1960 granted by the Addl. Settlement Commissioner, all subsequent proceedings taken by Settlement Authorities are void and are of no legal effect. It seems that the legal aspect of the case was not brought to the notice of ties Hon'ble High Court.
Hence all proceedings including the auction were illegal. The same view was held in the cases reported in PLD 1958 SC (Pat.) 104 and PLD 1964 SC 101.
(b) The petitioner's plea that the auction was not approved not it could have been approved) by the learned Additional Settlement Commis--sioner has also considerable force. The auction remains unapproved even today. The matter of transfer exclusively lies within the jurisdiction of the Settlement Authorities. The result is that the auction without having been approved stands nullified.
For these reasons, I hold that the auction of the stall was illegal. I therefore accept the petition and order transfer of the disputed plot to petitioner as ordered on 17-11-1960 by my predecessor."
It is evident from the order that the respondent No. 1 was in know of the fact that the matter was finally adjudicated by the superior Courts of Pakistan. Hut he lightly surpassed these decisions with a tenuous remark, that. "It seems that the legal aspect of the case was not brought to the notice of the Hon'ble High Court."
17. On passing the anomalous order, a notice from this Court was issued to the Chief Settlement Commissioner, Baluchistan, who submitted his explanation as under;--- "The petitioner invoked the special jurisdiction of this Tribunal under section 9(3) of the Displaced Persons Act (XXVIII of 1958 whereby the Chief Settlement Commissioner enjoys powers of superintendence and control over the subordinate Tribunal on the administrative as well as judicial side. The said powers are analogous to the powers of the High Court contained in Article 102 of Old Constitution of 1962, Article 205 of the Interim Constitution 1972 and 203 of the Constitution of 1973. "
Now it is a settled law that the words "Supervision and Control" wherever they are used, carry the same meaning i. e. To exercise administra--tive as well as judicial control over the subordinate Courts and where there is no other remedy available under the ordinary law of the country, this power can be invoked to correct or revise all proceedings, orders and judgments of the subordinate Courts and in suitable cases direct orders can be passed sue mote by this Tribunal.
This Tribunal assumed the special jurisdiction in this case as it was satisfied that gross injustice had been done to the petitioner due to illegalities committed by the Assistant Settlement Commissioner and Deputy Settlement Commissioner, Quetta in auctioning the property under di6pute in spite of the stay order issued by the Additional Settlement Commissioner, Quetta whereby be had restrained the Deputy Settlement Commissioner from auctioning the property tide his order dated 5-10-1960 made on the joint application of the petitioner and others dated 3-10- 1960 for the transfer of the fire wood stalls in their possession. The Deputy Settlement Commissioner on 7-10-1960 directed his office much before the Actual auction date in the following words :---- "The auction of the plot in possession of fire wood merchants may be withheld and the plots deleted from list of plots."
But in spite of the stay order of the Settlement Commissioner dated 5-1C-1960 which was duly noted by the Deputy Settlement Commissioner on 7-10-1960 and despite the transmission of report dated 8-10-1960 by the Settlement Commissioner to the Chief Settlement Commissioner, the said plot was auctioned on 13-10-1960 while the P-Form of the petitioner was still pending disposal on merits and it was only on 28-12-1960 I.e. Much after the auction date that the P-Form of the petitioner was rejected by the Deputy Settlement Commissioner without affording an opportunity of being heard although in the meanwhile the Chief Settlement Commissioner under his order dated 17-11-1960 bad approved the Scheme of transfer of plots to the stall holders. Hence it is evident that the order of Deputy Settlement Commis--sioner during the subsistence of the stay order by the Settlement Commissioner regarding auction of the property was a nullity and without jurisdiction and therefore, ail orders confirming the illegal orders have no footing to stand and fall down alongwith the original void order.
It can be very clearly concluded that the order of the Deputy Settlement Commissioner auctioning the property despite the stay order from the Settlement Commissioner has created misapprehension in the mind of the Settlement authorities and they failed to note that the auction was illegal and without jurisdiction and as such there was nothing to confirm.
Now it is quite clear that the order of the .D. S. C. Auctioning the property in spite of the stay order was a nullity and the orders passed to confirm It could not cure the inherent defects of voidness and even if it is passed by the Honourable Supreme Court it can be ignored by a Civil Judge of the Third Class.
I would furthers submit that my predecessor, the Chief Settlement Commissioner, Lahore, in an analogous case of Bano Market of Quetta despite the failure of one Ghulam Hyder on the judicial side upto the High Court, was pleased to order the transfer of the plot in his favour in accordance with the provisions of Settlement Scheme No. VI with respect to Plot No. 2756 bearing No. 2-31/9, 10, Quetta by his order dated 2-2-1967. A true Copy of the said order was produced before me by the petitioner which is on the record and which has not so far been challenged on this ground.
It has been wrongly asserted by Mat. Tauhaidun Nisa that the judgment of this Tribunal was undated. It was clearly dated as 21st October, 1972 and there appears to the some misapprehension about the date of the order.
1n these circumstances, after going through the case-law referred to above. I came to the conclusion that the Chief Settlement Commissioner has the authority to go into the question of entitlement of the petitioner to the property in dispute. I therefore decided the matter according to my understanding of the legal position. I had absolutely no intention of malting any observation or comments on the judgments of the High Court and the Supreme Court. I would however, request for apology if my order has created such an impression.
18. Whatever the case may be, but it is quite evident from the record that the Chief Settlement Commissioner had the knowledge of the decisions of the High Court and Supreme Court. He has intentionally used the words "I bad absolutely no intention of making any observation or comments on the judgments of the High Court and Supreme Court" in his order The words "I had absolutely no intention of making any observation or comments", have significant meaning. These words have been used to shadow the real Intention of the respondent No. 1 who was bent upon to favour the respondent No. 2 in any way and whatever the consequences may come thereafter.
19. Now averting to the reasons advanced by the Chief Settlement Commissioner, Baluchistan by which, he had passed the impugned order, in spite of the decisions of the High Court and Supreme Court, I have to appraise the grounds mentioned therein. His first ground was that in presence of stay order dated the 5th October, 1960 of the Additional Settlement Commissioner, all the subsequent proceedings taken by the Settlement Authorities were void and of no legal effect.
According to him, this aspect of the case was not brought to the notice of the High Court and Supreme Court. But the decision of the Supreme Court categorically contains that :--- "'As to the stay order issued before the plot in dispute was sold by public auction to the respondent No. 4' we find that Annexure " (7" at pages 28 & 29 bears a note by the Deputy Settlement & Rehabili--tation Commissioner dated the 4th October, 1960, recommending that the evacuee plots in the occupation of fuel wood merchants who are mostly locals and non-claimants may be sold to them at the prevailing market price plus 50 per cent.
The Deputy Settlement and Rehabilitation Commissioner again put up a note on 7-10-1960 that auction of plots may be withhold and these plots may be deleted from the list immediately which was Initialled by the Additional Settlement and Rehabilitation Commissioner on 8th October, 1960.
What happened after the 8th of October, 1960, is not known except that on 13th October, 1960, the auction was held and the plot in dispute was sold to the respondent No. 4 for Rs. 12,600. The officers incharge of the suction being none other than the same Deputy Settlement Commissioner and the Additional Settlement and Rehabilitation Commissioner, it does not stand to reason that if the auction of the plot in dispute was stayed on 8-10-1960 why no effect was given to it. Further after the auction was held the sale in' favour of the respondent No. 4 was approved by the Additional Settlement and Rehabilitation Commissioner and a permanent transfer deed also issued in her name. These circumstances lead to the conclusion that either the stay order did not pertain to the plot in dispute or that the stay order Issued before the 13th October, 1960, was subsequently countermanded."
20. The second objection which gave cause to the respondent No. 1 to pass the impugned order was that the suction was not approved at all and it remained unapproved up to that day. The order dated nil, of the Additional Settlement Commissioner, Hyderabad, clearly indicates that the auction proceedings were duly approved and the provisional transfer order was issued to the appellant on 6-12-1960, after she had paid the auction price in full. The Court in his judgment has clearly given finding that the auction was held and the sale in favour of the appellant was approved by the Additional Settlement Commissioner.
21. Having these findings on the record it can hardly be said that the auction was not approved. The both grounds of the Chief Settlement Commissioner, Baluchistan appear to be fallacious and male fide. In my view, these decisions of the superior Courts on the findings may operate as res- Judicata, as already discussed above and it was beyond the jurisdiction of the Chief Settlement Commissioner to have given findings on the facts contrarily tot the decisions of High Court and Supreme Court. The impugned order is based on facts against the record, and the decisions of the superior Courts and this Court in writ jurisdiction has jurisdiction to scrutinize the case as has been held in Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghana and another (PLD 1975 Kar. 342), it bas been held that ;---- "In Pakistan, the power to issue writs stricto sense does not exist after 1958, and such writs have been replaced by a ell-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 partern 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 facts or collateral facts which provides power to a Tribunal of limited jurisdic--petition, is besides being capable of being read in constitutional provisions, even otherwise jealously guarded. 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 necessary 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 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 and others v. Officer on Special Dur; PLD 1973 SC 236 in which judgment the point is stated as follows;---- Itis now well-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 recognizes a privilege to err'', then such action amounts to a 'usurpation of power unwarranted by law' and such 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 bound to give effect to it particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circum-- stances, something which would be patently unjust or unlawful."
22. The record of this case has been deliberately kept away from this Court on a very flimsy ground, that Mr. Farooq the clerk concerned was not in service. Therefore, the relevant record was not traceable.
23. In view of the circumstances, I can very well smell fishy with the Settlement Authorities, who in order to shroud the misdeeds of the Chief Settlement Commissioner has misplaced the record. It has left a very bad taste in my mouth. Any how, there is sufficient material before this Court to show that the plot in dispute was properly transferred to the petitioner. But by the impugned order, the respondent No. 1 had illegally transferred it to the respondent No. 2 and there can be no other opinion for it.
24. For the foregoing reasons, I have reached the conclusion that the respondent No. 2 had no power to cancel the Transfer Deed of the petitioner. The Impugned order it, therefore, declared to have been passed without lawful authority.
25. 1n spite of the decisions of High Court of West Pakistan and Supreme Court of Pakistan, the respondent No. 1 passed the impugned order male fide and quite contrary to the findings of the High Court and Supreme Court. His order seems to have been passed in clear violation of the provisions of Articles 98 and 201 of the Constitution of the Islamic Republic of Pakistan of 1973. The impugned order speaks itself so. A show-causal notice of three weeks may be issued to Captain Saleh Mohammad Khan the then Member Board of Revenue/the Chief Settlement Commissioner.
Baluchistan, as to why contempt proceedings should not be taken against him. In case the explanation is not received within the specified time, the proceedings shall be proceeded ex parts.
A copy of this order be sent to the learned Advocate-General to assist the Court in dealing with the contempt proceedings.
26. In result, the petition is allowed. The impugned order is declared to have been passed without lawful authority. The respondents are ordered to bear the cost of the proceedings.