1983 PLP 2970 (CLC)

Ss. 10 & 11-Permanent Transfer Deed Rules-Constitution of Pakistan (1973), Art. 199-Fraud-Provision that whenever transfer obtained either by fraud or misrepresentation or in violation of law, same could be re-opened, not in existence when order of remand on basis of fraud passed-Order, held, without jurisdiction and of no legal effect--Law unless expressly confers authority on a Tribunal of restricted jurisdiction to open cases on ground of fraud and forgery same within exclusive domain of Courts of plenary jurisdiction to decide after recording evidence and holding a full-fledged inquiry whether fraud and forgery have been committed or not. 1975SCMR115fol. Date of hearing : 19th June, 1975. Abdul Majid, the petitioner, holds a P. T. D. dated 24th March, 1970 transferring Property No. SE-XIX-42-9-1, Baghbanpura, Lahore, on the basis of being a successful bidder at an auction, and having paid its price. The Additional Settlement Commissioner by an order dated 26th May, 1973 in proceedings which are stated to have been started in March 1970 and related to orders passed in 1967 and 1968 has directed the Deputy Settlement Commissioner that he should conduct thorough inquiries in the matter and decide the case in accordance with the provisions of law, after hearing the parties and allowing them full opportunity to lead evidence that they might like to adduce in support of their respective claims. This order has aggrieved the petitioner who holds the Permanent Transfer Deed and he has invoked the Constitutional jurisdiction of this Court.

2. The A history of the transfer of this property is somewhat involved. It was initially in possession of three non-claimants who had applied for its transfer. They were Abdul Aziz, Abdur Rehman and Muhammad Ibrahim. On an objection being taken that they were not the claimants they associated with Muhammad Islam son of Umar Din. Umar Din was the claimant but not Muhammad Islam, his son who actually associated. Therefore, ultimately transfer was allowed in favour. of these non-claimants occupants but as an associate instead of Muhammad Islam, Umar Din wag introduced. A P. T. O. was also issued on 8th August, 1960 in the name of Umar Din. In 1966 the Deputy Settlement Commissioner recorded an order that Uuiar Din further surrendered his right in the property in favour. of Mushtaq Hussain through an agreement which was approved of by the Deputy Settlement Commissioner on 26th February, 1966. There was failure on the part of Mushtaq Hussain, Umar Din the transferees and the associates to pay the price and its resumption was ordered in 1968 and thereafter it was put to public auction on 21st February, 1970 and the auction was confirmed in favour of the petitioner on 16th March, 1970 and the P. T. D. was issued to him as stated earlier on 24th March, 1970.

3. It was immediately before the issuance of the P. T. D. that Muhammad Islam filed an appeal against the orders whereby transfer in favour of Mushtaq Hussain was allowed by the Deputy Settlement Commissioner on the basis of an agreement of association and also challenged the order whereby for non-payment of the transfer price the property had been resumed. The specific case of Muhammad Islam was that Umar Din had not subscribed to any such association, that it was a forgery and fraud played on the Settlement Authorities and that the resumption could not take place after service of notice on Mushtaq Hussain. It was on this plea that the Additional Settlement Commis sioner failing to understand as to how the deed of association between Mushtaq Hussain and Umar Din was signed by attorney of Umar Din, namely, Muhammad Islam and also by Umar Din felt that there was something suspicious about it. He was impressed by the plea of forgery and fraud and directed the remand.

4. Till 1964 there existed in the Permanent Transfer Deed Rules a provision that wherever transfer had been obtained either by fraud or by misrepresentation or in violation of law, the same could be reopened and on being satisfied that it was so the transfer could be set aside. With the deletion of these rules the result could not just the same as it was in the presence of these rule. The intention obviously was; unlike a provision which continues to exist in the Displaced Persons (Land Settlement) Act in the form of sections 1 and 11 that in respect of urban property such a reconsideration and re-opening of the cases should not take place on the ground of frau and forgery. Otherwise also unless the law expressly confers the authority on a Tribunal of restricted jurisdiction to reopen cases on the ground of fraud and forgery it is in the exclusive domain of the Courts o plenary jurisdiction to decide after recording evidence and holding a full fledged inquiry whether fraud and forgery have been committed or not. This view finds ample support from the decision of Supreme Court in M. Moosa v. Muhammad and others 19759 CMR

115. Therefore, the order of remand passed by the Settlement Officers on the basis of challenge to order passed in 1967 and 1968 and at a time when the P. T. D. had been obtained by the petitioner is held to be without jurisdiction and of no legal effect. Order accordingly. No order as to costs. M. A. K. Order accordingly.