P L D 1964 (W (PLP)

MUHAMMAD DAUD KHAN, J.‑--In this writ petition Mst. Shahzadi Asfia Sultana Begum (hereinafter will be referred to as petitioner) challenged the order conveyed to her by letter No. 745‑F and M/Reh/62 dated 29th August 1962 (Annexure C) declaring Dhani Ram Beli Ram Building, No. 95‑A Saddar Road, Peshawar as not being a big mansion and prayed that it may be declared as ultra vires and without jurisdiction, because the said property having already been declared as big mansion by the Chief Settlement Commissioner (respondent No. 1) in the course of judicial proceedings and transferred to the petitioner, could not be again transferred to respondents Nos. 3 to

6. In this writ petition the Chief Settlement Commissioner and the Settlement Commissioner (Industries) and respondents Nos. 3 to 6 who are transferees of different portions of this building were arrayed as respondents.

2. The allegations of the petitioner in this petition are no very lengthy, but some of them are not supported by an; documentary evidence, and, therefore, during the statement o the allegations of the writ petition in this judgment which are not supported by any document I propose to record the word "not supported by any evidence" or "not proved" in this judgment.

3. The petitioner alleged in this writ petition that the building in dispute was declared as big mansion by a Boar appointed for this purpose (not supported by any evidence) As the building was completed in 1947 by the evacuee owner the basis for this decision was the annual rent of Rs. 7,60 assessed in 1947 and not the rent in 1946 when the building was incomplete and still in the course of construction.

4. It was further alleged in the writ petition that in pursuance of the decision of the Board (decision of Board not proved) it was auctioned in January 1960 in favour of one Mian Khadim Shah for Rs. 2,10,000, that respondents Nos. 3 to 6 did not object to the auction and some in fact took part in actual bidding either personally or through their relations giving bids by respondents 3 to 6 (not proved). It was further alleged that Mian Khadim Shah had backed out and his security was forfeited.

5. The petition reads further that when the petitioner learnt that Mian Khadim Shah had backed out and his security was forfeited and the auction was cancelled, she offered the auction price of Rs. 2,10,000 to the Chief Settlement Commissioner, who directed her Agent to appear before the Deputy Settlement Commissioner, Peshawar (this direction not proved). The petitioner was given to understand that her application had been accepted (given to understand not proved). Respondent No. 3 submitted an application that the premises were not a big mansion. This application was rejected. This order of the Deputy Settlement Commissioner is Annexure `A'. (This document does not show that the objection was overruled, but as a matter of fact this is a letter by the Deputy Settlement Commissioner, Peshawar to the Additional Settlement and Rehabilitation Commissioner, Peshawar, in reply to his Memo, mentioned in the beginning of this letter). The writ petition further reads that respondent No. 3 dissatisfied with this decision preferred an appeal on judicial side (no copy of grounds of appeal was produced nor the order passed thereon had been placed on file‑not proved). It was further alleged that the matter was finally decided by respondent No. 1 on the judicial side in favour of the petitioner whose offer was finally accepted for Rs. 2,10,000 (copy Annexnre B), an order passed by Sheikh Muhammad Rafiq, Settlement and Rehabilitation Commissioner with powers of Chief Settlement and Rehabilitation Commissioner, Lahore, in an application and Mr. Muhammad Rafiq had not given any decision in this order himself with respect to the character of the property being a big mansion or otherwise, but he dismissed this application merely on the ground that Syed Hasham Raza, the former Chief Settlement Commissioner, passed an order on 11th March 1960, accepting the offer of Shahzadi Asfia Sultana which was Rs. 2,10,

000. The order of S. Hasham Raza, was not conveyed to the petitioner, in spite of that Mr. Muhammad Rafiq passed that order).

6. It is further alleged in the writ petition that having failed in open Courts, respondents Nos. 3 to 6 who were influential persons through intrigues had circumvented the judicial order of the Chief Settlement Commissioner and succeeded in transferring the building to them as occupants behind the back of the petitioner as is evident from the order of respondent No. 2 (Annexure C). The petitioner challenged the said order of the Chief Settlement Commissioner on the following grounds:‑ (a) That it is ultra vines and without jurisdiction. (b) That it is opposed to natural justice and fair‑play. (c) That it is contrary to accepted policy and law. (d) That it was induced through under hand methods. The petitioner in the end prayed that the impugned order be set aside and the original order transferring the premises to the petitioner for Rs. 2,10,000 be restored with cost throughout.

7. A written statement was filed on behalf of respondent No. j In this written statement, it was stated that according to para. 16 of the Schedule to the Act, no building the monthly rent of which in 1946 was less than Rs. 500, p.m. shall be declared to be a big mansion, that in the present case the rent of the building in 1946 was Rs. 150 p.m. that it was then incomplete and was completed in 1947 and it was then assessed Rs. 8,400 per annum, that such a building could not have been declared to be a big mansion and it was, therefore, rightly deleted from the list of Big Mansion at subsequent stage. Further in the written statement the auction was not admitted in January 1960, but was alleged to have taken place on 11th November 1959, and it was admitted that the last bid was of Mian Khadim Shah for Rs. 2.10,

000. It was further averred in the written statement that under the wrong belief that the property was declared to be a big mansion, the then Chief Settlement Commissioner (M. S. H. Raza) ordered its transfer to the petitioner (Shahzadi Asfia Sultana) by negotiation, that this order was made on 11th March 1960 and that on that date the Chief Settlement Commissioner had no power to dispose of a big mansion by negotiation and that such power was conferred upon him on 30th May 1960 (Annexure R/A). It was, therefore, contended in the written statement that the order of 11th March 1960 suffered from incompetency besides the other defect in the declaration on which this order was made. It was alleged in this written statement that before the order of the Chief Settle ment Commissioner dated 11th March 1960 could be communi cated to the petitioner, respondent No. 3 filed written objections challenging the validity of the declaration on the ground that in 1946 the assessed rent of the property did not exceed Rs. 500 p.m., and consequently communication of the order dated 11th March 1960 was withheld and subsequently this communication was never made to the petitioner. Thus she had no locus standi to file the writ petition. In this written statement, it is admitted that the report of the Deputy Settlement Commissioner (Annexure A to the writ petition) was correct and was substan tiated by other evidence on the record, but his view that the declaration was correctly made was not correct. To meet the allegation of the petitioner with respect to the order passed by Mr. Muhammad Rafiq, Settlement Commissioner exercising the delegated powers of the Chief Settlement Commissioner in the written statement, it is alleged that Mr. Muhammad Rafiq had merely dismissed the petition of M. M. Azmat in default of disappearance and the case was not argued in his Court about the legal flaw in the declaration of this building as big mansion as was pointed out above, and it was not present in his mind when he passed that order, as it was merely based on the erroneous presumption that the declaration was correctly made and on a further presumption that building No. 95‑A Saddar Road Peshawar was transferred to Shahzadi Asfia Sultana. The order of the Chief Settlement Commissioner dated 11th March 1960, was stated to be incompetent; hence void. It was further stated in the written statement that in order to dispose of the property in accordance with law, the present Chief Settlement Commissioner, Pakistan, examined the case and had no alternative but to pass order in the case on 19th August 1962 in the following words:- "The order of acceptance of her offer has not been communi cated to Asfia Sultana at any stage. Portions of the building have already been transferred to occupants in possession and P. T. Os. issued in their favour. In the circumstances we may inform Asfia Sultana that the building is no longer available for disposal and her bid or offer cannot be accepted." This order was communicated to the petitioner by a letter Annexure `C' to the writ petition. It was, therefore, prayed in the written statement that the writ petition may be dismissed.

8. Before I enter into the question of facts and law discussed in the Court at the time of the hearing of the writ petition, it is pertinent to state the law relating to the declaration of big mansions, the authority competent to make such declaration and the mode of transfer of such property. Paragraph 16 of the Schedule to the Displaced Persons (Compensation and Rehabilita tion) Act, 1958 (which will hereinafter be referred to as the Act,) provides in the following words:- "Every building or premises, whether residential or com mercial, declared by the Chief Settlement Commissioner or an officer authorised by the Central Government in this behalf to be a big mansion or hotel, shall be disposed of by unrestricted public auction: Provided that no building the monthly rent of which in 1946 was less than five hundred rupees shall be declared to be a big mansion or hotel." This paragraph lays down the manner in which a property declared by the Chief Settlement Commissioner as a big mansion should be disposed of and that was only by unrestricted public auction. The proviso to paragraph 16 further lays down a limit on the power of the Chief Settlement Commissioner with respect to the property which he could declare as a big mansion. The words used m this proviso are of a prohibitive character that no building the monthly rent of which in 1946 was less than five hundred rupees shall be declared to be a big mansion or hotel. This proviso, therefore, lays down that a property which had already been assessed to rent of less than Rs. 500 in 1946, as the word "was" was used in this proviso, could not be declared by the Chief Settlement Commissioner as a big mansion or hotel. He had the discretion in this matter even to declare or not to declare a property carrying more than Rs. 500, as monthly rent to be a big mansion or not. He, however, was prohibited under this proviso to treat that property as big mansion the rent of which was in 1946 less than Rs.

500. The subsequent accretion to the building by new construction or otherwise whereby the rent of the building was assessed to more than rupees five hundred would not under this proviso be subject to declaration by the Chief Settlement Commissioner as a big mansion or hotel.

9. A scheme for the disposal of big mansion and hotels was prepared under section 16 (1) (b) and (c) of the Act. The procedure in this scheme was also laid down. Paragraph 2 of the scheme provides "The Chief Settlement Commissioner may from time to time declare those evacuee buildings or premises the monthly rent of which in 1946 was not less than Rs. 500 to be mansions or hotels. Such declarations will ordinarily be made through Press Notes." Paragraph 4 lays down:- "Every big mansion or hotel shall be disposed of by unres tricted public auction." Paragraph 5 of the scheme lays down the rules about the advertisement for the auction.

10. It is, therefore, clear from the language of Paragraph 16 as well as Settlement Scheme No. III, what property could be declared as a big mansion and how and in which manner it can be disposed of. If the Chief Settlement Commissioner had declared a property to be a big mansion or a hotel, which cannot stand the test given in proviso to paragraph 16, or has disposed of that property in any other manner than the one laid down in B paragraph 16, namely, the unrestricted auction, he will under the law be considered to have acted without jurisdiction, anal when he had done so, his acts were void and the orders he had passed in contravention of the statute could validly be ignored.

11. Before I proceed further, an argument raised by Doctor Abdur Rahim, counsel for the petitioner, may here be answered. He urged that in case of incomplete and damaged building which has been completed or repaired subsequently at Government expense or at the expense of a person other than the present occupant, those buildings could be assessed to rent subsequent to 1946, and the rent for 1946 could be determined in accordance with sub‑para. (2) of paragraph 22 of Settlement Scheme No. I. He urged that in the present case the part of the building which was in existence in 1946 was assessed to rent of Rs. 150 p.m., but subsequently when the remaining part was completed before Partition in 1947 it was assessed to Rs. 8,400, per annum, and, therefore, the Chief Settlement Commissioner was competent to take into account the whole rent of the building by applying the formula laid down in paragraph 22 of Scheme No.

1. In my opinion, this contention is fallacious for more than one reason, firstly that Settlement Scheme No. 1, is with respect to the disposal of houses and shops, and, therefore, it does not apply to the disposal of other properties for which separate schemes were prepared. Secondly, proviso to paragraph 16, as I have interpreted above, clearly lays down that the rent of the building in existence in 1946 should be more than Rs. 500 p.m. when the Chief Settlement Commissioner was competent to declare such building to be a big mansion or hotel. Settlement Scheme No. III was prepared subsequently. If the Central Government had the intention of applying the formula given in paragraph 22 of Settlement Scheme No. I for the determination of the rent of a building the part of which was not in existence in 1946, it should have been expressly laid down in Settlement Scheme No. III itself. This was not done. In my view, the Central Government was not even competent to do so because of the clear intention of the Legislature contained in proviso to para graph 16 of the Schedule to the Act that it was the actual rent of 1946 of a building which was the determining factor for conferring jurisdiction on the Chief Settlement Commissioner for declaring big mansions and hotels. The words used in proviso to paragraph 16 of the Schedule (no building the monthly rent of which in 1946 was less than five hundred rupees) clearly point out the existing building in 1946 and not incomplete and damaged building which might come into existence on some later date. If the proviso to paragraph 16 was not even a bar for the determination of the rent of a subsequently completed and repaired building, even then unless the Central Government had specifically laid down in Settlement Scheme No. III that the evaluation of the property in 1946 should be determined on the basis of the formula laid dawn in paragraph 22 of Settlement Scheme No. I the formula could not be applied for determining a building to be big mansion or a hotel. The rules laid down in Settlement Scheme No. 1 could mot mutatis mutandis apply to Settlement Scheme No. III. There is no dearth of instances in which it has been laid down specifically in a certain scheme that a rule laid down in on scheme should mutatis mutandis be applicable to the property required to be disposed of under any other scheme. The argument, therefore, of Dr. Abdur Rahim, counsel for the petitioner, on this point is not of much, weight.

12. Major Muhammad Ishaq, Settlement Commissioner (Legal), who represents respondents Nos. 1 and 2 in this case, brought the relevant file of this property from the office of the Chief Settlement Commissioner. From that file which is before me now, he has made statements at the bar with respect to certain facts. According to him, it is not borne out from any record that the Chief Settlement Commissioner had applied his mind in determining whether the property in question could legitimately be declared as a big mansion under proviso to paragraph 16 of the Schedule to the Act or not. It is not also on the record if any Press Note was issued in which this building was included in the list of big mansions. He, however, admitted that the Local Settlement Authorities of Peshawar notified this building for auction on 11th November 1959, as a big mansion and the highest bid of Rs. 2,10,000 was offered by Mian Khadim Shah, that the report of this auction was submitted by the Deputy Settlement Commis sioner (Industries) through the Additional Settlement Commissioner (Industries) to the Chief Settlement Commissioner and the Chief Settlement Commissioner (S. Hasham Raza) on 20th November 1959, recorded an order in the following words "The highest bid is accepted." It appears that on the date when this property was auctioned as a big mansion, namely, 11th November 1959, respondents Nos. 3 to 6, addressed a telegram to the Chief Settlement Commissioner which was received in his office on the same day and it was in the following words:- "Pray stay of confirmation of auction held today at 10 a.m. of Dhani Ram Beli Ram Building Saddar Road, Peshawar Cantt on the ground that its assessed rent in 1946 according to Cantonment Board records was only Rs. 150 per month. Therefore does not fall under big mansions. Injustice and dislocation to claimant and non‑claimant displaced persons feared. Your honour's statement dated 9th instant appearing in Pakistan Times of 10th November refers. Full petition follows". It is further evident that the telegram was not placed before the Chief Settlement Commissioner when the order dated 20th November 1959, of confirmation of sale in favour of Mian Khadim Shah was passed. The acceptance of the auction was, however, conveyed to Mian Khadim Shah. A detailed petition dated 11th November 1959, addressed by respondents Nos. 3 to 6 to the Chief Settlement Commissioner was received on 2nd March 1960. In this petition they again urged that the Chief Settlement Commissioner was not competent to declare this property as big mansion as its rent in 1946 was Rs. 150 p.m.

13. Mian Khadim Shah backed out and his earnest money in Rs. 2,000 was forfeited. On 3rd March 1960, the petitioner presented an application to the Additional Settlement Commis sioner at Lahore that she was prepared to pay the auction price of Rs. 2,10,000 and it was received in the office of the Chief Settlement Commissioner on the same day. The Additional Settlement Commissioner (industries) recorded a note on 10th March 1960, that offer of the petitioner be approved. The Chief Settlement Commissioner (S. Hasham Raza) recorded the following order on 11th March 1960. It runs in the following words:- "Action should be taken as proposed by the Settlement Commissioner." The order dated 11th March 1960 passed by S. Hasham Raza as Chief Settlement Commissioner was not communicated to the petitioner, because on 12th March 1960, a second representation was received from respondents Nos. 3 to 6 by the Settlement Commissioner (Industries). On the margin of this representation, he recorded the following order on 18th March 1960: "Please have it examined early. If approval of sale has not been sent already, it may be withheld." This was marked to the Deputy Settlement Commissioner (Industries).

14. The representation of respondents Nos. 3 to 6 was referred to the Additional Settlement Commissioner, Peshawar on 24th March 1960 for local enquiry as to the amount of rent in 1946. The Additional Settlement Commissioner, Peshawar, reported to the Settlement Commissioner (Industries) on 21st May 1960, in the following words: "According to assessment of 1941‑46, the assessed rent of this building was Rs. 1,800 per annum. It was completed in 1947 and the reassessment figured Rs. 8,400 per annum." He, therefore, recommend that this building be treated as a big mansion.

15. On the receipt of the report dated 21st May 1960, by the Settlement Commissioner (Industries) from the Additional Settlement Commissioner, Peshawar, the former passed the following order: "We may advise A. S. C., Peshawar that since the rent in 1946 was less than Rs. 500 p.m. the building cannot be treated as a big mansion and may, therefore, be disposed of as a house. Shabzadi Asfia Begum may also be informed that her offer cannot be accepted as the building in question is not a big mansion." This decision was communicated to the petitioner on 23rd September 1960. On the receipt of this communication, she made representation and it was referred to Mr. Muhammad Rafiq, Settlement Commissioner, by Mian Ahsan-ud‑Din who by that time had become the Chief Settlement Commissioner, under section 20 (2) of the Act.

16. When the Settlement Officers of Peshawar received the order of the Settlement Commissioner (Industries), they proceeded to dispose of different parts of the property under Settlement Scheme No. I. A chain of appeals and revisions started. In the beginning the revision petition of M. M. Azmat also reached the Chief Settlement Commissioner. It appears that the Chief Settlement Commissioner also referred this petition to Mr. Muhammad Rafiq, Settlement Commissioner, for disposal under section 20 (2) of the Act. Mr. Muhammad Rafiq dismissed the revision petition of Mr. M. M. Azmat and passed the order dated 27th June 1962, (Annexure B) merely on the ground that this property had already been declared as a big mansion by S. Hasham Raza, Chief Settlement Commissioner.

17. From the above facts it is evident that the petitioner merely applied on 3rd March 1960, that since the auction of this property as big mansion had been cancelled as a result of the backing out of the last bidder, namely, Mian Khadim Shah, and his earnest money had been forfeited, therefore, the property be transferred to her on the same price, viz., Rs. 2,10,

000. No doubt S. Hasham Raza did pass an order on the office file that this offer be accepted, but this order was never communicated to her, and, therefore, in law the offer could not be said to have been accepted and unless the offer was accepted, the contract could not have been complete. The order of S. Hasham Raza, therefore, did not confer any right with respect to this property on the petitioner. The only circumstance which had been repeatedly pressed into service by the counsel for the petitioner in her favour is the order of Mr. Muhammad Rafiq, Settlement and Rehabilitation Commissioner with powers of Chief Settlement Commissioner, Lahore, dated 27th June 1962, (copy Annexure B). In this order he has not applied his independent mind to determine if this property could possibly be declared as a big mansion by applying the test given in paragraph 16 of the Schedule to the Act, or not, but he had merely placed his reliance on the order dated 11th March 1960, passed by S. Hasham Raza on the office file, whereby the offer of Rs. 2,10,000 of the petitioner for the transfer of this property in her favour was accepted, but it was not communicated. In my view, therefore, this order cannot be considered to be a judicial order conferring any right on her to the property in dispute.

18. It is contended by Major Muhammad Ishaq that the order of S. Hasham Raza dated 11th March 1960, was without jurisdiction inasmuch as it presumed the property in dispute to be big mansion, although its rent in 1946 was less than Rs. 500 p.m. and it could not even have been declared an big mansion under the proviso to paragraph 16 of the Schedule to the Act, and if any order was passed on the basis of the order of the Chief Settlement Commissioner by Mr. Muhammad Rafiq, it also suffers from the same defect. In support of this legal position, he relied on a decision given in Civil Appeal No. 19 of 1957 in case Yousaf Ali v. Muhammad Aslam Zia and 2 others (P L D 1958 S C (Pak.) 104), where on page 106 in the head note under (b), it has been observed:‑ "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 making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non‑existence. 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 them, must, unless some statute or principle of law recognising as legal the 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 . . . . ." Similarly in Mirza Khan v. Mst. Zar Bibi and others (P L D 1958 Quetta 21), it has been laid down that "order without jurisdiction passed by Court is illegal and should be ignored". The same principle has been laid down in case Mst. Zainab v. Mst. Baji and others (P L D 1960 S C 229). The order of S. Hasham Raza and the subsequent order of Mr. Muhammad Rafiq referred to above, therefore, do not confer any right in the petitioner which she could validly enforce) in a Court of law.

19. Besides that, the acceptance of the offer, by S. Hasham Raza, of the petitioner for the sale of this property for Rs. 2,10,000 would amount to its transfer by negotiation. The order of the Chief Settlement Commissioner was passed on 11th March 1960. According to paragraph 16 of the Schedule to the Act and Settlement Scheme No. III referred to above, the Chief Settlement Commissioner had the power only to sell the big mansions and hotels by unrestricted auctions. On that date he had no power to dispose of a big mansion by negotiation. The Central Govern ment had by order dated 30th May 1960, (copy Annexure R/A with the written statement) conferred such a power on the Chief Settlement Commissioner for the first time. The acceptance of the offer, therefore, by the Chief Settlement Commissioner on 11th March 1960, was also without authority and jurisdiction.

20. Dr. Abdur Rahim contended that under section 10 (b) of the Act before its amendment by Ordinance 11 of 1962, the Chief Settlement Commissioner was competent to dispose of the big mansions in any other manner than unrestricted auction with the approval of the Central Government, and, therefore, the order dated 30th May 1960, passed by the Central Government authorising the Chief Settlement Commissioner to transfer a big mansion by negotiation to any person who offers at least fifty years gross annual rent of such mansion for 1946, should be taken to have retrospective effect, and, therefore, the order of S. Hasham Raza as Chief Settlement Commissioner was competent. Section 10 of the Act runs in the following words:- "Power to transfer property from the compensation pool:-- Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool. (a) on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule; or (b) in such other manner as may be approved by the Central Government." Under part (a) of section 10, the Chief Settlement Commissioner was competent to dispose of a big mansion only in accordance with the provisions of the Schedule, namely, paragraph 16 of the Schedule. Under part (b) of section 10, the Chief Settlement Commissioner could sell a particular big mansion on the approval by the Central Government. On the departmental file before me, I find that S. Hasham Raza or any officer had not even suggested at the time of the acceptance of the offer of the petitioner that the approval of the Central Government for the disposal of this property on negotiation basis may be obtained. The approval, therefore, by the Chief Settlement Commissioner of the disposal of the property as big mansion in favour of the petitioner was made without either previous or subsequent approval of the Central Government. The letter dated 30th May, 1960, issued by the Secretary to the Government of Pakistan to the Chief Settlement Commissioner authorising him to dispose of a big mansion also on negotiation basis, is of a general character and not with respect to any one of the big mansions, and, therefore, the Chief Settlement Commissioner would only be considered to have been authorised by this letter to dispose of the big mansions by negotiation after he was authorised by this letter. This letter, therefore, cannot be considered by any stretch of imagina tion to have approved the transfer of the big mansion by negotiation before the letter was issued This argument of the learned counsel for the petitioner is also without any substance. I am, therefore, clear in my mind that neither the Chief Settlement Commissioner was competent to declare this property as a big mansion nor on 11th March 1960, he was competent to dispose of this property by negotiation. His order dated 11th March 1960, is a nullity in the eye of law as having been passed without jurisdiction and authority and this order, therefore, does not confer any right whatever on the petitioner that she could enforce it in a Court of Law.

21. The only contention of learned counsel for the petitioner which remains unanswered is that the impugned order of Mr. Soofi conveyed to her on 29th August 1962, by Settlement Com missioner (Industries) by his letter Annexure `C' was passed at her back, and, therefore, violated the principle of natural justice and hence had no legal effect against her rights. As held above, the petitioner had no legal right vested in her by the order passed by S. Hasham Raza without any competence and authority. Major Muhammad Ishaq contended that the principle that a person should not be condemned unheard does not apply to this case. He asserted that this principle could only apply if any legal right was vested in her and that it had been taken away by an order passed at her back and without affording an opportunity to her for being heard in support of that right. Dr. Abdur Rahim, counsel for the petitioner, had only been able to support his contention that the impugned order was bad, because it was passed at the back of the petitioner by producing a decision of the High Court passed in case M. Muhammad Din v. The Corpora tion of the City of Lahore (P L D 1960 Lah. 242). This judgment was passed in a service matter where the employee was removed from service without being heard directly in contravention of his constitutional right. Major Muhammad Ishaq in support of his contention relied upon Mst. Amir Begum v. Umar Din and others (P L D 1961 Lah. 360). Shabir Ahmad, J. who delivered the main judgment had discussed this question in paragraph No. 6 of the judgment at page 365 in the following words:-- "The argument that omission to give opportunity to a person who presents an application for revision offends against the principle of natural justice that no person shall be condemned unheard may now be taken up. It does not appear tome t necessary in this case to examine the correctness of the off‑repeated argument that it is one of the principles of natural justice that a person should be heard before being condemned, because it is clear that if the person who applied for exercise of revisional jurisdiction by the Chief Settlement Commissioner had been condemned, his condemnation had already taken place, and all that had been prayed for in the application for revision was that condemnation should be set aside. It was, therefore, not a case of condemning a person without hearing him but a case of not being prepared to set aside his condemna tion, and the principle of natural justice, relied upon by the learned counsel for the appellants, even if it were applicable to proceedings in Court, cannot be invoked in the circumstances". This pronouncement is applicable to this case, because no legal right had accrued to the petitioner by the order of S. Hasham Raza, Chief Settlement Commissioner, passed without jurisdiction when he declared the property to be a big mansion and also accepted the offer for the disposal on negotiation basis in contravention of the express provision of law; therefore that order is not legal order in the eye of law which could have created any right in her favour and that order could legitimately have been ignored, when the petitioner was not clothed with any right by the passing of the order of S. Hasham Raza approving her offer of the disposal of the big mansion by negotiation, then the Chief Settlement Commissioner, Mr. Soofi, was not legally bound to hear the petitioner before passing the impugned order. Since the order of S. Hasham Raza was without jurisdiction and as a result of the decision given above it could easily be ignored, then the question of the petitioner being not heard by Mr. Soofi, Chief Settlement Commissioner, is not ofl much substance, because by passing the impugned order the/ petitioner was not condemned at all.

22. There is also another aspect of this matter. If the writ, petition is accepted, and it is ordered that the present Chief Settlement Commissioner should pass a fresh order after hearing the petitioner, even then the order of S. Hasham Raza will be set aside as it was passed without jurisdiction and then the petitioner would not get any effectual relief. In such a case the pronounce ment of their Lordships in case, Sh. Rehmatullah v. The Deputy Settlement Commissioner Centre 'A' Karachi and others (P L D1963 S C 633), would come into play. Under the head note (c) on page 637, the following observations are relevant:- "The Court will not grant a writ to produce a certain effect when the law provides power to one of the parties affected by the writ, to nullify the Court's writ unilaterally and the circumstances enabling such action are found to be present". The circumstance of the order in favour of the petitioner, having been passed without jurisdiction is present and even if she was given an opportunity to be heard, the result would have been the same. The ultimate result would be that the transfer of property will not be made to her on negotiation basis.

23. For the aforesaid reasons, I have no hesitation in finding that Mr. Soofi was not bound to hear the petitioner before he g had passed the impugned order and even if it was necessary, even then it would not alter the position when the present petition is accepted and the case is sent to the Chief Settlement Commissioner for passing a fresh order after affording the petitioner a opportunity of being heard.

24. Mr. Peer Bakhsh Khan Advocate, who appeared on behalf of respondents Nos. 3 to 6, raised an objection that a part of the disputed building was transferred to one Muhammad Azam who has not been made a respondent in this case, and, therefore, this writ petition is bad for want of impleading all the necessary parties. Dr. Abdur Rahim, counsel for the petitioner, expressed his ignorance, if any part of the property was transferred in his name and contended that due to this ignorance he had not been impleaded. No doubt this is a material defect, as, if this writ petition is accepted, then this order will be binding as against respondents Nos. 3 to 6 who are the transferees of the part, of the property, but not against Muhammad Azam who is also a transferee of another part of the same property, and, therefore, this will amount to two conflicting decisions with respect to different parts of the same building. Since this writ petition is being dismissed on merits, therefore, it is not necessary to go into this objection in detail.

25. For the reasons given above, I consider that the petitioner is not competent in law to get the property transferred in her favour on negotiation basis and also when it could not have been declared as a big mansion. The transfers, therefore, in favour of respondents Nos. 3 to 6 were good in law and are binding. The writ petition is dismissed with costs. Pleader's fee Rs.

300. FAIZULLAH KHAN, J.‑--I agree with the order proposed by my learned brother that the writ petition must fail. I would, however, like to make some observations on the principal points raised on behalf of the petitioner. The main challenge against the impugned order is that Mr. S. Hasham Raza the then Chief Settlement Commissioner in his order dated 11‑3‑1960, which was never communicated to the petitioner, had approved the transfer of the building which is subject‑matter of this writ petition on payment of Rs. 2,10,

000. The other point raised on behalf of the petitioner was that Muhammad Rafiq, Settle ment and Rehabilitation Commissioner, with powers of Chief Settlement Commissioner, by his order dated 27th June 1962, while dealing with the application of M. M. Azmat dismissed his application by recording the following operative part of the order:-- "The case has also been finally decided at Chief Settlement Commissioners' level. There is the clear order of the Former Chief Settlement Commissioner (Sayed Hasham Raza) dated I1‑3‑1960 accepting the offer of Shahzadi Asfia Sultana which was Rs. 2,10,

000. The application is dismissed." It is plain from reading of the operative part of the order reproduced above that Mr. Muhammad Rafiq did not give any independent decision on the point which was referred to him, namely, whether the building in question was a "big mansion" or not, but proceeded to dismiss the appeal assuming that the order of Mr. S. H. Raza dated 11‑3‑1960, was a valid older. It will, therefore, be noticed that the order of Mr. Muhammad Rafiq is wholly based on the order of Mr. S. H. Raza. The decision of the writ petition, therefore, mainly hinges on the decision of the question whether the order of Mr. S. H. Raza dated 11‑3‑1960, is a valid order? This question admits of a short answer in the negative and against the petitioner for the short ground that at the material time the Chief Settlement Commissioner had no powers whatsoever of disposing of "big mansion" by any manner other than by open auction, and the powers to transfer property by negotiation were conferred on the Chief Settlement Commissioner by the Central Government on 30th May 1960, vide. Annexure R/A. It, therefore, follows that the order of Mr S. H. Raza, which is the sheet anchor of this petition, is without jurisdiction and consequently it does not confer any legal right or the petitioner, and since the order of Mr. Muhammad Rafiq was based on a void order it is also rendered inoperative. I need not labour the point, suffice ft to say that both these point, stand concluded by the rule enunciated by the high authority of the Supreme Court in Yousaf Ali v. Muhammad Aslam Zia and two others. Muhammad Munir, C. J. delivering the judgment for the Supreme Court, observed: "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 making it, and no party can plead as final an order made in excess of the powers of the authority making 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 them, must, unless some statute or principle of law recognising as legal the 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."

2. The argument that the petitioner had been condemned unheard and the rule of natural justice has been violated, though specious, does not bear any scrutiny in the instant case, for the short and good reason that since the order of M. S. H, Raza dated 11‑3‑1960, on which the writ petition was mainly founded being without jurisdiction did not clothe the petitioner with any legal right, and consequently no useful purpose would be served by issuing a writ of certiorari to the Chief Settlement Commissioner for giving hearing to the petitioner. Doctor Abdur Rahim when confronted with this painful dilemma tried to wriggle out by saying that though the Chief Settlement Commissioner had no powers at the material time to transfer the "big mansion" if the impugned order was set aside and case remitted to the Chief Settlement Commissioner for giving a hearing to the petitioner the former might be persuaded to accept the offer of the petitioner. The argument in my view is wholly erroneous, in that writs are note issued as of right but are purely discretionary. The object of the writ is to curb excess of jurisdiction, to keep inferior Courts and Tribunals within their bounds, and the writ jurisdiction is appropriate only in all such cases where "substantial rights" of an applicant have been so far invaded as to prejudicially affect him if the proceeding or judgment remains un-reversed. In the instant case, as already indicated no right muchless any legal or substantial right, has accrued to the petitioner under the order of Mr. S. H. Raza dated 11‑3‑1960, and if we were to issue the writ we would not be reversing any illegal order, but on the contrary, be perpetuating an order without jurisdiction and also reversing valid orders passed by appropriate authorities in favour of respondents 3 to 6 and one Muhammad Azam (who has not been impleaded as respondent), sander which different portions of the building were transferred to them. Surely the writ jurisdiction was never intended for such a purpose. In the result, the writ petition fails and is dismissed with costs. S. Q. Petition dismissed.