P L D 1983 Lahore 495 (PLP)

This judgment shall dispose of Writ Petitions Nos. 233-R/82 and 251-R/82 as they arise out of a common question of law and fact.

2. The dispute in this case relates to a portion of property No. S-19-R-27, known as E. Plomer Building, The Mall, Lahore. The entire property was originally disposed of in auction by the Settlement Department in consideration of Rs. 20,00,000 in favour of seven joint bidders (according to the petitioners). The case of the respondents is that it was transferred in favour of eight joint bidders. This is, however, not material for the purpose of resolving the controversy involved in these petitions. It is an admitted fact that all the joint bidders were liable to make payment jointly and severally. A default was allegedly committed in respect of payment of three shareholders to the extent of Rs. 6,55,

900. In consequence, the property of the defaulters was resumed by the Settlement Department.

3. Mr. S. M. Almas Ali, petitioner No. 2 made an offer to purchase the resumed property at the auction price. This offer was accepted by the Member, Board of Revenue (Settlement & Rehabilitation) , vide his order dated 6-3-1976. This order is at page 89 under paragraph 357 of the noting part of the Settlement file which has been perused by me with the assistance of the learned counsel for the parties and reads thus : "As proposed provided he agrees to pay in. cash if any C B. is found bogus subsequently." (Sd.) Illegible 6-3-1978." Paragraph 358 of the noting file may also be referred which reads thus :- "Indemnity bond or a like undertaking may be obtained for compliance with the order above. (Sd.) Secretary (Ind.) ??????????? Illegible 6-3-1976."

4. Prior to acceptance of the offer, petitioner No. 2, Mr. S. M. Ilmas entered into a deed of association dated 30-10-1973, whereby he agreed to allow a share in .the said property to Khalid Masood, petitioner No. 1; to the . extent of Rs. 6,10,900.

5. The-petitioners executed separate, indemnity bonds dated 16-3-1976. The terms and conditions of both the bonds are identical. Paragraphs Nos. 1, 2 and 5 of the same are reproduced : "I. That 1 am the transferee of a portion of a big mansion bearing No. S-19-R-27, The Mall, Lahore. II. That I have paid the entire price of the portion mentioned above. V. That in case any compensation book is found bogus or forged, I shall repay the equivalent amount in cash and in case of failure, the Department will be authorised to recover the same from any immovable or movable properties under the Land Revenue Act."

6. Petitioner No. 2 also admitted this fact vide paragraph 5 of C. M. No. 766/83. This was followed by separate transfer orders issued in favour of the petitioners. Subsequently, the Additional Settlement Commissioner (Industries), Punjab, Lahore, vide his memo. dated 22-4-1982, called upon the petitioners to show cause as to why the transfer of the said property from their names be not cancelled. It reads thus : ' "Subject : Show-Cause Notice. On direction from Martial Law Headquarters, Lahore an enquiry was conducted, as a result of which it has been found that all the Compensation Books tendered by you (including your own) for the adjustment of auction price, amounting to k's. 6,55,900, of the portions transferred to you in E-Plomer Building, The Mall, Lahore, bearing property No. S-19-R-27, have not been found to be genuine. You are, therefore, asked to show cause within 15 days why transfer of the 'said property from your names be not cancelled and resumed, besides any other action which may be necessary under the circumstances of the case. (Sd.) Add]. Settlement Commissioner (IND), Punjab, Lahore."

7. The petitioners impugned the aforesaid show-cause notice; as well as, the office memorandum dated 22-4-1982,. issued by the Settlement Commissioner (Industries), Punjab, Lahore, to Mr. Muhammad Aslam Bhatti, Deputy Settlement Commissioner-I1, Farid Kot House, Lahore, on the basis of which the. said show-cause notice was issued. It was stated in the memorandum, in question, that in consequence of a direction from the Martial Law Headquarters, Lahore, an inquiry was conducted, as a result of which it has been found that compensation books tendered by the petitioners for the adjustment of suction price amounting to Rs. 6,55,900 of the property, in dispute had been found to be ingenuine according to the report of the Officer Incharge, Record Room, Farid Kot House; Lahore,-and that of the Deputy Settlement Commissioner (G), Headquarters Office, Lahore.

8. The main grievance of the petitioners is that respondent No. 1 had no jurisdiction to issue the impugned notice and take proceedings in consequence thereto. The petitioners were directed by order dated 9-10-1982 to raise this question in the first instance before respondent No.

1. The petitioner, therefore, took up this objection before respondent No. 1, who held by order dated 11-11-1982 that he had jurisdiction to scrutinize the authenticity and genuineness of the compensation books tendered. by the petitioners. Reliance was placed on Muhammad 1qbal v. S. A. M. Khan Member, Board of Revenue, West Pakistan Lahore and 3 others (P L D 1970 Lah. 614) ; Muhammad Hussain v. Muhammad Gulzar and 4 others (1976 S C M R 308); -Qutubuddin and others v. Sardar Hidayat Ullah Khan Mokal and another (1976 S C M R 524) ; Mst. Bhano and another v. Mian A. M. Saeed and others (1969 S C M R 299) ; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (P L D 1975 S C 331) ; Mst. Chanda Begum v. Settlement Commissioner and another (P L D 1977 S C 503) and the judgment of the Supreme Court in C. P. S. L. A. No. 746 of 1977, dated 3-12-1979, in-support of the proposition that fraud vitiates even the most solemn proceedings and no party should be allowed to take advantage of his fraud and the Court had suo motu power to re-call or review an order obtained from it by fraud.

9. Mr. Ishaque Muhammad Khan, learned counsel for the petitioners vehemently argued that after the issuance of the transfer orders the Settlement Department had become functus officio and even on the pretext of fraud the transfer orders cannot be interfered with and the only remedy in such cases is to invoke the jurisdiction of the civil Court. In support of his contention reliance was placed on Muhammad Shafi v. Mauj Din Khan and 3 others (P L D 1976 Lah. 17) ; Syed Murld Hussain Shah v. Mufti Muhammad Yousaf Ali and another (1974 S C M R 8) ; S. Anwar Hussain San! v. Sarfraz Ahmad and 2 others (P L D 1971 S C 669) ; Mst. Jehan Ara Begum v. Bashir Ahmad and others (1975 S C M R 401) ; Haji Faizul Haque Khan v. Syed Abdul Hamid and another (1976 S C M R 429) and unreported judgment of this Court in Ch. Abdul Hamid v. Mr. Muqarrab Khan etc. W. P. 830/79.

10. Learned counsel for the petitioners next contended that after the repeal of the Evacuee Laws the Settlement Authorities have become nonexistent and only pending cases or the cases remanded by the Supreme Court or a High Court could have been dealt with as contemplated by section 2(2) of the Evacuee Property and Displaced Persons (Repeal) Act (XIV of 1975). He emphasized that in the instant case no matter was pending within the ambit of section 2 of Act XIV of 1975 and therefore, respondent No. 1 had no jurisdiction to issue the impugned notice. Reference was made to Sungreen & Co. Ltd., Karachi v. Noman Bai and 4 others (P L D 1978 Kar. 100) and Ahmad Din v. Deputy Settlement Commissioner, Lahore and another (P L D 1977 Lah. 761).

11. Mr. Ishaque Muhammad Khan further submitted that The Chief Settlement Commissioner, Lahore v. Raja Muhammad Afzal Khan and others (P L D 1975 S C 331) relied upon by respondent No. 1, in his order dated 11-11-1982 is. distinguishable, in that, it related to the period when the Settlement Authorities existed, whereas after the repeal of the Evacuee Laws it ceased to exist and therefore, respondent No. 1 cannot take any advantage of the dictum laid down in the said authority. ???????? ?? ???????????

12. It was next contended that the respondents have no jurisdiction to hold that the compensation books were bogus and cancel the transfer on the basis of the indemnity bonds. The precise submission was that the indemnity bonds by itself do not confer jurisdiction upon respondent No. 1 to sit as a Judge. The indemnity bond is a contract between two parties and in case of breach of any condition, the aggrieved party should go to civil Court instead of adjudicating the dispute himself. In this connection reference was made to Pakistan Refugee Rehabilitation Finance Corporation v. K.S. Kammu Mian Malik and 2 others (1970 S C M R 297). In the precedent case it was held that section I1 of the Pakistan Refugees Rehabilitation Finance Corporation Ordinance (XV of 1948) authorities the Corporation to recover as land revenue all sums due to it but the provisions do not authorise the Corporation to unilaterally declare sums due to it from a debtor.

13. The learned counsel for the petitioners contended that transfer orders were issued after due verification as to the genuineness of the compensation books. In this connection reference was made to photostat copies of certain documents placed at pages 35, 45, 48, 50, 52 and 56 of the writ petition. He further submitted that scrutiny of the compensation books was made by the competent authority in accordance with the instructions issued from time to time and, therefore, this matter cannot be reopened.

14. The respondents have specifically stated in their written statement/ report that the documents Annexures B, B/t, B/2 and B/3, relied upon by the petitioners were forged documents. In any event, it is a disputed question of fact which cannot be examined in these proceedings.

15. Finally Mr. Ishaque Muhammad Khan vehemently contended that after the repeal of the Evacuee Laws work regarding documentation, recovery of outstanding transfer price etc. was to be made by the Board of Revenue as contemplated by section 4 of Act No. XIV of 1975, and therefore, the Additional Commissioner (Industries) had no jurisdiction to initiate the impugned proceedings. 16. 1 have considered the submissions of the learned counsel for the parties and have also perused the record.

17. The indemnity bonds were admittedly executed after the repeal of Evacuee Laws and formed part of the terms and conditions of Transfer Orders issued to the petitioners, who stepped into the shoes of the original auction purchasers whose property was resumed.

18. The mere fact that the scrutiny of the compensation books was allegedly conducted and the books were allegedly found genuine would no ipso facto debar the Member, Board of Revenue to recover the outstanding transfer price if subsequently the Books were found bogus on a proper enquiry conducted by him. The exercise of such a power would be in conformit with the provisions of section 4 of Act XIV of 1975 read with the terms and conditions laid down in the indemnity bonds. Section 4 ibid provides : "All the work regarding documentation, both for the urban and rural properties recovery of outstanding transfer price, rent or mortgage money of such property already disposed of and discharge of miscellaneous liabilities out of these recoveries, which may remain pending immediately before the repeal of the aforesaid Act and Regulations shall stand transferred to the Board of Revenue of the Province." The petitioners as such are estopped to take any exception to the inquiry proposed to be conducted by the respondents to examine the genuineness or otherwise of the compensation books tendered by them for the adjustment of the transfer price of the property, in dispute.

19. I have considered the authorities cited at the bar, referred to above. I am clear in my mind that the dictum laid down in these cases is not applicable to the facts of this case. The instant case is clearly distinguishable from the cases referred to above.

20. It may be pointed out that the Additional Settlement Commissioner (Industries), Lahore, in the impugned show-cause notice, has recorded a finding of fact that the compensation books tendered by the petitioners have not been found to be genuine. This observation is of no consequence, inasmuch as, Mr. M. H. Akhtar, Secretary (Settlement and Rehabilitation) Board of Revenue, after seeking specific instructions from the learned Member, Board of Revenue (S & R) has made a statement that the latter has expressed his willingness to hold an inquiry by himself. The statement marked `X' has also been placed on record which reads thus : "Before the Lahore H/Court, Lahore. S. P. No. 233-R-1982. It is respectfully submitted for the kind consideration of this learned Court that the M. B. R. (S & R) is prepared to hold a fresh enquiry into the genuineness or otherwise of the C. B.'s in question, after giving opportunity to the petitioners to present their case and then take action as per law. ??????????? (Sd.) (M. H. Akhtar), Secretary S & R, BOR." Dated : 29-3-1983.

21. Mr. S. M. Almas Ali, petitioner No. ?., also made a statement before the Court that he does not press the relief claimed in the writ petition, if this Court deems fit to issue any direction in the light of the statement marked `X'. It may be observed that Civil Miscellaneous Petition No. 766/83 hag also 'been moved by him seeking therein permission for depositing Rs. 45,000 in cash in relation to the Transfer Order issued to him. No such direction is called for in these proceedings. It is for the learned Members Board of Revenue to consider this request and pass such order as he may deem fit in accordance with law.

22. The learned Member, Board of Revenue is prepared to hold a fresh inquiry into the genuineness or otherwise of the compensation books after providing adequate opportunity of being heard to the petitioners, who should feel themselves satisfied rather than taking shelter of mere technicalities at this preliminary stage. Futhermore, in view of statement marked `X', the writ petition is premature.

23. The holding of fresh inquiry by the learned Member, Board of Revenue would not work any injustice to the petitioners rather it would provide them full opportunity to plead their case.

24. It is well-settled that the object of writ jurisdiction is to foster, justice and not to perpetuate something which would be patently unjust and a writ can be refused even against a void order. Refer S. Sharif Ahmad Hashi v. Chairman, Screening Committee, Lahore (1978 S C M R 307) and Nawab Syed Raunaq Ali etc. v The Chief Settlement Commissioner and others (P L D 1973 S C 236). 1 am, therefore, not inclined to grant the relief as prayed for in the writ petition in the exercise of l my discretionary constitutional jurisdiction.

25. Be that as it may, in view of the undertaking given by the Members, Board of Revenue, vide statement marked `X', I order that a fresh inquiry c be held into the genuineness or otherwise of the compensation books after providing an adequate opportunity of being heard to the parties by the learned Member, Board of Revenue (Settlement and Rehabilitation), as expeditiously as possible and not by the Additional Settlement Commissioner (Industries), Lahore and thereafter the former shall proceed in accordance with law. The petitioners in the writ petitions are directed to appear before the learned Member, Board of Revenue (Settlement and Rehabilitation), Punjab, Lahore, on 6-4-1983. The writ petitions are disposed of accordingly. M. A. K.????????? Order accordingly.