' JAVED IQBAL, This petition for leave to appeal isdirected against the judgment, dated 4-9-2002 passed by learned High. Court of Sindh (Circuit Bench at Hyderabad) whereby the Constitutional petition preferred on behalf of respondents has been accepted and the proceedings initiated by means of letter No,REH/SGR/114 of 1998 have been set aside being mala fide and ab initio void, hence this petition.
2. The facts of the case have been mentioned in extenso in the judgment impugned and reproduction whereof would be of no use.
3. Mr. Abdul Rahim Kazi, learned Advocate Supreme Court appeared on behalf of petitioners and vehemently contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is next contended that the learned Division Bench of the High Court of Sindh should not have conducted a thorough probe on controversial facts which could not have been done in exercise of Constitutional jurisdiction. It is also contended that the transfer of land in favour of one Surjo son of Rasoolo has been ignored causing serious prejudice against the petitioners and resultantly the controversy could not be resolved in accordance with law. It is also contended that the relevant provisions of the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) have been misinterpreted and misconstrued. In order to substantiate his view point, the following authorities were referred:--
(i) Shamrooz Khan v. Muhabbat Khan 1989 SCM R 819 and (ii) Quetta Hindu Panchayat v. Dilshad Akhtar 1993 SCM R 21.
4. Mr. Imran Ahmad, learned Advocate Supreme Court appeared on behalf of caveators and supported the judgment impugned by controverting the arguments as advanced by Mr. Abdul Rahim Kazi,learned Advocate Supreme Court for petitioners for the reasons enumerated therein with the further submission that in fact a fraud has been committed by the petitioners in order to deprive the respondents from their valuable property.
5. We have carefully examined the judgment impugned and gone through the entire record with the eminent assistance of the learned counsel. We have also perused the order passed by learned Additional Commissioner, dated 9-1-1999, judgment and decree passed by learned Senior Civil Judge, dated 14-12-1996, judgment of High Court, dated 28-1-1998 and order passed by this Court on 20-7-1998.
6. After having gone through the entire record we are of the opinion that a futile attempt has been made to frustrate the object of judgments passed by learned Senior Civil Judge upto this Court in favour of respondents by employing deceitful means, tactics and exploiting various provisions of law. It is worth mentioning that Ghulam Ali (Petitioner No,1) is son of Haji Muhammad Khan (petitioner No,2). The father had lost the battle upto the apex Court and on seeing the defeat of father another round of frivolous and baseless litigation has been started by the son to get the land in question usurped by ignoring the fact that a tenant/lessee cannot assume the status of landlord by prolonging the baseless litigation. The petitioner moved an application in the office of Deputy Commissioner, Sanghar and with , his active connivance succeeded to procure the relevant file and the mutation in the name of respondents was got cancelled merely due to want of relevant record. It is to be noted that the mutation was cancelled on 11-6-1998 by Deputy Commissioner, Sanghar. The appeal preferred on behalf of respondent was allowed and the order passed by Deputy Commissioner, Sanghar, dated 11-6-1998 was set aside by means of order, dated 9-1-1999 with the direction that entry in the record of rights be made in the name of respondents. Being aggrieved the petitioners preferred a revenue appeal before the Member (Judicial) Board of Revenue, Hyderabad by whom the case was remanded vide order, dated 22-12-1999 to District Sanghar. The respondents at this juncture approached the then Chief Secretary, Government of Sindh for the redressal of their grievances highlighting the mala fide action of Deputy Commissioner namely Mr. Mukhtiar Hussain Soomro and Additional Deputy Commissioner Mr. Ahmed Bukhsh Ghumro. On the complaint of respondent the Deputy Commissioner, Sanghar namely Mr. Laiq Ahmad was asked to make a thorough probe by the Chief Secretary who after gone through the entire record submitted his report, operative portion whereof runs as follows:-- "The perusal of file reveals that the applicant Ghulam Ali filed an appeal before the Member Board of Revenue (J) which is still pending decision.
' On receipt of application of the above-named applicant, a thorough search was conducted to the original file of the claimant Mst. Noor Jahan wife of Rais Khan which has bean finally traced and clearly reveals that the land in question was rightly allotted to the claimant Mst. Noor Jahan wife of Rais Khan against their verified claim. It may, therefore, be concluded that the note submitted by the then Assistant Mr. Mushtaque Ahmed Chandio was done with mala fide intention and he succeeded in getting wrong orders passed from the then Additional Deputy Commissioner and Deputy Commissioner, Sanghar. The objective was to somehow get the entries made on the basis of claim of Mst. Noor Jahan cancelled. The methodology adopted was crude but simple and an attempt was made to usurp 400 Acres of prime land from the genuine claimants. The original claimants have since waged a legal battle on numerous forums and have won everywhere.
Presently the case is pending before Member Judicial. This inquiry was conducted by the Additional. Deputy Commissioner and a report in this regard has already been sent to your office vide letter No,EPB/SGR/188, dated 6-10-1999.
' In view of the above circumstances, it is requested that drastic disciplinary action against Mr. Mushtaque Ahmed Chandio, the then Assistant of E.P. Branch under E&D Rules may kindly be initiated so as to set an example for others."
7. A bare perusal of the relevant portion of the said report would reveal that how false and concocted proceedings were initiated by Ghulam Ali (petitioner No,1) with the active connivance of Mr. Mushtaque Ahmed Chandio, the then Assistant in the relevant section. It is amazing that how the land which was allotted in the year 1961-62 after completion of all the mandatory requirements could have been cancelled after a few decades on an application simpliciter moved with ulterior motives and mala fide intentions by Ghulam Ali (petitioner No,1). It is noteworthy that the said allotment was never challenged before appropriate forum at opportune moment by anyone. It could not have been challenged at that time by the petitioner who was not more than ten years old. The said allotment had attained finality and after the repeal of Evacuee Laws it could not have been challenged. The factum of fraud, as pressed time and again by Mr. Abdul Rahim Kazi, learned Advocate Supreme Court on behalf of petitioners, could not have been substantiated by leading any cogent and concrete evidence worth the name. As mentioned hereinabove the allotment of land available was finalized when Ghulam Ali (petitioner No,1) was less than ten years old and how it could have been cancelled on an application simpliciter which too was moved with fraudulent intentions merely on the around thatrelevant file was not traceable as the same was got removed to usurp the land in question in an unlawful manner which depicts criminal bent of mind of Ghulam Ali (petitioner No,1).
8. We are of the considered view that after the repeal of the Displaced Persons (Land Settlement)
Act, 1958 (XLVII of 1958) the land in question was neither available for allotment nor it could have been allotted as it was not subject to any proceeding anywhere and therefore, it was not available for the purpose of re-allotment. In fact it was a past and closed transaction which could not have been reopened by Ghulam Ali (petitioner No,1) who had no concern whatsoever with the land in question except that he is son of Haji Muhammad Khan (petitioner No,2) who had tried his luck upto this Court but in vain.
9. It transpired from the scrutiny of record that the price of land in question was paid pursuant to Martial Law Regulation No,89 of 1961 and the non-execution of conveyance deed by the concerned authorities would have no substantial bearing on the title of the respondents as all the mandatory requirements were adhered to by the respondents in letter and spirit and they cannot be held responsible for any lapse which otherwise is immaterial on the part of concerned authorities. In the same wake of events it has been observed that mutation qua the land pertaining to the respondents was cancelled by the Additional Deputy Commissioner by means of letter, dated 11-6- 1998 without any notice and affording proper opportunity of hearing to respondents which can be cited as a classic example of highhandedness, misuse and abuse of the official authority. The title of the original allottee was never challenged and resultantly the respondents who had stepped in the shoes of original allottee could not have been deprived from land which now has been mutated again in their favour. The dictum as laid down in cases Shamrooz Khan v. Muhabbat Khan 1989 SCM R 819; Quetta Hindu Punchayat v. Dilshad Akhtar 1993 SCM R 21 is not applicable in the case in hand for the simple reason that fraud has been committed by the petitioners to frustrate the object of judgments passed upto the level of this Court.
10. The learned High Court has dilated upon the contentions as agitated before us in a comprehensive manner vide judgment impugned, relevant portion whereof is reproduced hereinbelow for ready reference:-- "There is no cavil with the above proposition, however, where a special law has been laid down and once the Tribunal has lost its jurisdiction in a particular class of cases, the same cannot be conferred beyond the limits set forth by the subsequent empowering enactment, which in the instant case is theDisplaced Persons Laws (Repeal) Act, 1975, to set aside decisions by the competent authority acting bonafidely within the scope of the authority conferred upon them and with respect to the property falling under the compensation pool. The impugned order being in excess of the power conferred and with mala fide intentions as already discussed above is distinguishable. The effect of the aforesaid repealing Act was not under consideration in Raunaq Ali's case. In order to foster justice and prevent injustice the present case calls for exercise of the discretion in favour of the petitioners.
' The objections of the learned Advocate for respondents Nos.5 and 6 as to the impugned orders not being challenged by respondents Nos.7 to 9 and locus standi of petitioner No,4, etc. Already reproduced above, have no bearing on the merits of the petition and are mere technicalities which do not affect the legality and merits of the impugned order.
' The validity of any order conferring the title of the said land by transfer of the said land in favour of the original allottees has not been disputed. The petitioners have been deliberately deprived of their lands due to mala fide acts of the officials as already discussed above.
' Lastly it may be added that the trend for obstructing the process of justice has been gaining ground and the Honourable Supreme Court has held that a duty has been cast on those charged with the difficult task of administrating justice to take some effective measures against the obstinate litigants on their lawyers in the cases of Bashir Ahmed v. Abdul Hameed 1984 SCM R 689, Abdul Hayee v. Sardar Muhammad, 1984 SCM R 1149, Jalaluddin v. H.B.L. And others 1985 SCM R 1965.
' In view of the above discussion we, while deciding the abovementioned points for consideration in favour of the petitioners, allow this petition and hold the entire proceedings initiated vide the impugned letter No,REH/SGR/114 of 1998 to be based on mala fides and so ab inbitio void and are accordingly "the impugned orders are" set aside. The petitioner is entitled to pursue his remedy for recovery of loss of profit from the said lands and file the break-up of his claim with the Taxing Officer within thirty days "as costs", from the respondents Nos.5 and 6 jointly and severally."
11. The conclusion as arrived at by the learned High Court being well-based does not warrant interference. The petition being devoid of merits is dismissed and leave refused.
12. Before parting with the juu.,ent it is directed that disciplinary action must be initiated against Mr. Mukhtiar Hussain Soomro, the then Deputy Commissioner and Mr. Ahmed Bukhsh Ghumro, the then Additional Deputy Commissioner and Mr. Mushtaque Ahmed Chandio, Assistant as recommended by the learned High Court and finalized expeditiously, progress whereof be intimated to the Deputy Registrar of this Court at Karachi within one month. A copy of this judgment be sent to the Chief Secretary for compliance.