1984 PLP 979 (CLC)

‑‑S. 10‑Permanent Transfer Deed Rules, 1961, r. 7‑Constitution of Pakistan (1973), Art. 199‑Permanent Transfer Deed‑Cancella tion on ground of fraud‑Permanent Transfer Deed once issued, Settlement Authorities, held, have no jurisdiction to cancel same on ground of fraud, misrepresentation or any contravention of any provision of Act.‑[Jurisdiction]. Mst. Jehan Ara Begun v. Bashir Ahmad and another 1975 S C M R 401 rel. Muhammad Anwar Khan v. M. A. Wasti, Settlement and Rehabilitation Commissioner, Peshatr and others 1975 S C M R 372 ref, (b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑ ‑‑‑ S. 10, 20 & 22‑Constitution of Pakistan (1973), Art. 199 Revisional jurisdiction of Settlement Commissioner‑‑Respondent purported by petitioner to have entered into agreement of associa tion with latter which was allowed by Deputy Settlement Commis sioner and a Permanent Transfer Deed issued jointly‑Respondent challenging issuance of P. T. D. as well as approval of deed of association on grounds of being done ex parte‑Settlement Commissioner in exercise of suo molu revisional jurisdiction setting aside order granting approval to deed of association and remanding case to Deputy Settlement Commissioner for examination of matter afresh‑Petitioner not challenging order of remand passed by Settlement Commissioner and participating in proceedings conducted by Deputy Settlement Commissioner in pursuance thereof‑Despite numerous opportunities given by Deputy Settle ment Commissioner petitioner failing to lead evidence in support of genuineness of deed of association which was ultimately cancelled by Deputy Settlement Commissioner‑Petitioner, held, estopped to challenge revisional order of Settlement Commissioner which having not been challenged before attaining finality‑Petitioner having acquiesced with remand proceedings before Deputy Settlement Commissioner cannot challenge jurisdiction of Settlement Com missioner on ground that after issuance of Permanent Transfer Deed, Settlement Authorities having become functus officio‑Remedy by writ, held further, even against a void order may be refused where petitioner estopped by his own conduct from challenging same. Rahim Bakhsh v. Dost Muhammad and another 1982 S C M R 665 and Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another 1974SCMR8ref. S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore 1978SCMR367rel. (c) Constitution of Pakistan (1973)‑ ‑‑Art. 199‑Writ jurisdiction‑Order passed ex parte in violation of principles of natural justice‑Writ jurisdiction, held, cannot be invoked to uphold such an order.‑[Natural justice, principles of]. This writ petition calls in question the order, dated 5th December, 1973 of the Deputy Settlement Commissioner, Lahore, and the orders, dated 30th December, 1972 and 12th December, 1972 of the Settlement Commissioner, Lahore.

2. The facts relevant for the disposal of this petition are that property No. S‑36‑R‑16, Railway Road, Lahore, was exclusively transferred in favour of the contesting respondent under Settlement Scheme No. VI by the Deputy Settlement Commissioner. It is an admitted fact that the petitioner made a statement on 25th February, 1961 before the Deputy Settlement Commissioner declining therein to have any share in the said property. In consequence, a Provisional Transfer Order was also issued in favour of the contesting respondent, who deposited a sum of Rs.4,500 in cash against the total transfer price amounting to Rs.6,

915. Subsequently, the contesting respondent purported to have entered into an agreement of association with the petitioner on 9th May, 1969, which was allowed on the same day by the Deputy Settlement Commissioner and in consequence thereof a Permanent Transfer Deed, dated 6th August, 1969 was jointly issued in favour of the petitioner and respondent No.

3. Thereafter the petitioner paid the balance transfer price amounting to Rs.2,415, as well as, the settlement fee. The issuance of P. T. D., as well as, approval of the deed of association was challenged by the contesting respondent by means of an application made to the Settlement Commissioner on 5th March, 1970 inter alia on the ground that he never executed or signed any agreement of association and the approval of the deed of association and the issuance of the P. T. D. was from ex parte and without notice to him. The Settlement Commissioner, Lahore Division, took cognizance of the petitioner, in the exercise of his suo Motu revisional jurisdiction under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) (hereinafter called the Act), and after affording adequate opportunity of being heard to the parties and perusal of record, set aside the order granting approval of the deed of association and remanded the case to the Deputy Settle ment Commissioner for the purposes of examination of the matter afresh and orders in the light of the observations made by him in his order, dated 30th December, 1972. The petitioner did not challenge this order before any competent forum and instead participated in the proceedings conducted by the Deputy Settlement Commissioner (Plots) Lahore, in pursuance of the aforesaid remand order. Since the contesting respondent disowned the deed of association, the learned Deputy Settlement Com missioner, gave numerous opportunities to the petitioner to lead evidence in support of the genuineness of the said document as is apparent from the interim orders passed by him from time to time. Copy of these interim orders of the Deputy Settlement Commissioner has been placed on record by the learned counsel for the contesting respondent. The petitioner failed to produce any evidence. In consequence, the documents relating to the transfer of the property, in dispute, in favour of the petitioner were cancelled by order, dated 5th December, 1973 of the Deputy Settlement Commissioner. Against this order, the petitioner filed a revision petition which was also dismissed by the learned Settlement Commissioner, by order, dated 12th December, 1973.

3. Sardar Sami Hayat, learned counsel for the petitioner, contends that after the issuance of the P. T. D. the property had gone out of compensation pool and the Settlement Authorities had become functus officio to deal with it, even in case of fraud or misrepresentation, after the deletion of rule 7 of the Permanent Transfer Deed Rules, 1961. The contention finds support from Mst. Jehan Ara Begum v. Bashir Ahmad and another (1975SCMR401), a judgment delivered by a Bench comprising of three Hon'ble Judges of the Supreme Court. When faced with this situation, learned counsel for the contesting respondent took up the plea that a contrary view has been taken in Muhammad Anwar Khan v. M. A. Wasti, Settle ment and Rehabilitation Commissioner, Peshawar and others (1975SCMR372), wherein a Bench of the Supreme Court comprising of two Hon'ble Judges observed that "deletion of rule 7 of the 1961 Rules, does not foreclose the jurisdic tion of the Settlement Authorities or for that matter the High Court to uncover the cases of fraud or illegalities, even after the issue of P.T.Ds.". The decision in Mst. Jehan Ara Begum's case was pronounced by a Bench comprising of three learned Judges of the Supreme Court, therefore, respectfully following the ratio laid down in that case. I hold that once at P. T. D, is issued then the Settlement Authorities have no jurisdiction to cancel it on the ground of fraud, misrepresentation or any contravention of any provision of the Act.

4. Mr. Muhammad Sair Ali, learned counsel for the contesting respondent, took up the plea that the issuance of P. T. D. does not take away the appellate or revisional jurisdiction of the Settlement Authorities under section 20 of the Act if the same has not yet been exercised as in the present case. Reliance was placed on. Rahim Bakhsh v. Dost Muhammad and another (1982 S C M R 665), wherein it was held :‑ The only point urged by the learned counsel for the petitioner before us was that after the P. T. D. had been issued in the petitioner's favour, the shop in question was no longer amenable to the jurisdic tion of the Settlement Authorities. There is no force in this conten tion and we are inclined to agree with the observation of the learned High Court Judge that this principle would not apply in this present case, because the issuance of a P. T. D. does not take away the appellate and revisional jurisdiction of the relevant Settle ment Authorities under sections 19 and 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, if the same had not yet been exercised, as in the present case. Reference in this connection may be made to Mst. Inayat Bibi v. Umar Din and others 1971 S C M R 16 and Syed Ahmad Abbas Zaidi and others v. Settlement Commissioner, Rawalpindi P L D 1968 Lah. 166." Sardar Sami Hayat has, however, referred to Syed Murid Hussain shah v. Mufti Muhammad J'ousaf Ali and another (1974 S C M R 8) wherein it was held "It is a well‑established proposition that with the issuance of P. T. D. in relation to an evacuee property, it ipso facto goes out of the compensation pool and as such, is no longer subject to the suo motu revisional jurisdiction of the Settlement Commissioner or for that matter the Chief Settlement Commissioner."

5. Be that as it may, the petitioner is not entitled to seek any relief in the exercise of discretionary constitutional jurisdiction of this Court, in that, the order granting approval to the Deed of Association was se aside by the learned Settlement Commissioner in the exercise of his suo motu revisional power. The petitioner never challenged the jurisfction of the Settlement Commissioner but contested the case on merits. The) learned Settlement Commissioner after hearing the parties remanded the case for fresh decision. This order not having been challenged, attained finality in terms of section 22 of the Act which provides "save as otherwise expressly provided in this Act, every order made by any officer appointed under this Act shall be final and shall not be questioned in any Court". Learned counsel for the petitioner next contended that the exercise of suo motu revisional power by the learned Settlement Commissioner was ultra vires, in that, the matter was dealt with by the learned Settlement Commissioner not in the purported exercise of his suo motu revisional power but in pursuance of an application made by the petitioner .after a lapse of a considerable period for which sufficient explanation was given. The contention is devoid of any force. The petitioner is estopped by his conduct to challenge the validity of this order in these proceedings as he acquiesced with the remand proceedings before the Deputy Settlement Commissioner without protest. The petitioner having submitted himself to the jurisdiction of the Deputy Settlement Commissioner, it does not lie in his mouth to now challenge his jurisdiction on the ground that the Settlement Authorities have become functus officio after the issuance of P. T. D. There is ample authority on the proposition of law that a writ even against void order may be refused where the petitioner is estopped by his conduct from challenge it. Reference be made to S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (1978 S C M R 367).

6. Sardar Sami Hayat next submitted that a vested right has accrued to the petitioner after the issuance of the P. T. D. and his proprietary rights cannot be interfered with on the ground of forgery and fabrication unless and until a positive finding in ‑regard thereto has been recorded. He emphasized that in view of the principles enshrined in sections 101, 102 and 103 of the Evidence Act (No. 1 of 1872) the onus of proof lies on the party who alleges fraud. Reliance was placed on the dictum laid down in Bharat Dharma Syndicata, Ltd. v. Harish Chandra (AIR 1937 P C 146) and Hansraj Gupta and others v. Dehra Dun‑.Mussoorie Electric Tramway Co., Ltd. (AIR 1940 P C 98) to the effect that the party who alleges fraud must prove it with cogent reasons. The precise submission is that the plea of fraud is to be proved by positive evidence and not by negative evidence and as such the respondent failed to prove that the deed of association was not signed by him or that the signatures that it bears are not by him. It is submitted that the contesting respondent did not appear in the witness‑box to state on oath that he did not sign the agreement of association and therefore, the D. S. C. was not justified to cancel the same on the ground that the petitioner failed to produce evidence in support of his claim. The contention is again misconceived. In Badrul Haq Khan v. The Election Tribunal Dacca etc. (P L D 1963 S C 704) the Supreme Court took the view that admission of inadmissible evidence or the improper allocation of onus etc. would not necessarily render the impugned order without lawful authority because, "the proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction". The same view was taken in Muhammad Hussain Munir and others v. Sikandar and others (P L D 1974 S C 139). Furthermore, the deed or association ought not to have been accepted by the Deputy Settlement Commissioner without examining the parties concerned, as held in Muhammad Shafi v. Settlement Commissioner, Multan and another (P L D 1979 Lah. 790). In the present case, it is not proved on record that the Deputy Settlement Commissioner satisfied himself as to the genuineness of execution of the deed and therefore, it will be difficult to uphold the order granting approval to the deed of association which was made ex parte and in violation of the principle of natural justice, in the exercise of constitutional jurisdiction. Reference may also be made to Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (P L D 1973 S C 236), wherein it was held, "an order in the nature of a writ of certiorari or mandamus is discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a‑ Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties If it does not work any injustice to any party, rather it cures a manifest illegality then the extraordinary jurisdiction ought not to be allowed to be invoked. In view of the above, I am not inclined to exercise my discretionary constitutional jurisdiction. The petition, therefore, fails and is hereby dismissed, with no order as to costs. M. Y. H. Petition dismissed.