P L D 1973 Karachi 624 (PLP)

Mr. Ghazi Khan son of Sono Khan Nizamani, Shop No. B‑153, Sanghar. Subject :‑Shop No. B‑153 Sanghar. You had purchased the above shop for Rs. 14,400 in auction held on 21‑8‑

60. You had paid the entire auction price in association from Compensation Book No. 32275 issued against 'A' Form No. BWN/269‑270 in the name of Abdul Ghafoor son of Madar Bux. On verification of genuineness of the Compensation Book, the Deputy Settlement Commissioner Bahawalnagar under his No. SSC/BWN/69/69/294 dated 8‑2‑1969 informed that the Compensation Book stands reduced to the extent of Rs. 18,

000. Adjustment of Rs. 14,400 Prom this Compensation Book towards the price of the above shop stand cancelled. You are now required to pay Rs. 14,400 in cash within 10 days failing which property should be resumed and made available for disposal according to law. (Sd.) Deputy Settlement Commissioner, Mirpurkhas.

6. Reliance was placed by learned counsel for the appellant upon a Memorandum dated the 16th August, 1960, that is to say five days before the auction in this case took place and which is reproduced at page 476 of the Manual of Settlement Law and Procedure issued by the Chief Settlement Commissioner, Pakistan which reads thus:‑ "Reports have been received that there are a number of bogus Compensation/Rehabilitation Books in the market. The Chief Settlement Commissioner has therefore, decided that each and every Compensation/Rehabilitation Book presented before the Settlement Authority concerned should be carefully scrutinized before it is accepted for payment of the transfer price of a property or for any other purpose. All the Compen sation/Rehabilitation Books will ultimately be checked up by the Settlement Account and Records Office, Lahore with the original file of the Claims Organization after the record of the Claims organization has been taken over by the Settlement Organization. In the meanwhile the following scrutiny may please be carried out by the Deputy Settlement Commis sioners and other Settlement Authorities concerned. (i) If the Compensation Book has been issued by the Settlement Authority before whom it is presented, the book should be compared with the duplicate copy maintained by such authority. (ii) If a Compensation/Rehabilitation Book has been issued by some other authority, a confidential letter as in the "Annexure" may be sent to toe issuing authority (by name if possible) for verification of the book etc.

2. An agreement of association or any other transaction in which the Compensation Book is proposed to be utilized should not be utilized unless the Compensation has been scrutinized as above.

3. If after scrutiny it is found out in any case that a fraud has been committed or is intended, the case may be handed over to the Enforcement Staff immediately for further necessary action.

4. The above instructions will apply to the Compensation/Rehabilitation Book presented to a Settlement Authority in future. Agreements of Association or other transaction which have already been finalized may also similarly be dealt with. Since particulars of Compensation Books which were presented by the parties concerned as available in the Agreement of Association and other relevant documents, there should be no difficulty in furnishing the necessary particulars to the issuing authority for scrutiny. If In any case it is suspected that a fraud has been committed, the person concerned should be given a notice to produce relevant Compensation/Rehabilitation Book afresh and the case may then be handed over to the Enforcement Staff." Now it is clear that this Memorandum makes provision for the scrutiny of Compensation Books in order to avoid just such a fraud as has taken place in the present case. In this present case It is the case of the respondents that the original Compensation Book was only for a sum of Rs. 23,820, not Rs. 80,000 as claimed by the appellant and that he had sold it to various parties who had utilized it to the extent of Its. 41,

820. Consequently so far from there being any balance on the Book he was bound to repay a sum of Rs. 18,

000. Now it is obvious that the question whether the original figure of the Compensation Book was 80,000 or 23,000 does not really make any difference. The point is that according to the respondents a fraud had been committed and that therefore according to the last sentence in the Memorandum which I have just quoted, the person concer ted should be given a notice; it is true, that the person concerned here, could mean the owner of the Compensation Book though this has not been argued by, the respondents before me. The actual word used, however, is "the person concerned: and regard being had to paragraph 2 of the Memorandum in which an agreement of Association is contemplated, such as has admittedly taken place between the appellant and respondent No. 4, the words are I think wide enough to include the person who has utilized the Compensation Book. My attention was invited by learned counsel for the appellant to the case of Mohammad Siddique v. Chief Settlement and Rehabilitation Commissioner (P L D 1965 5 C 123), in which case the Supreme Court observed at page 133 :‑ "It is plain that before the Impugned order was passed by the Settlement and Rehabilitation Commissioner the second and third appellants who had been associated with the first appellant with the requisite permission of the Settlement authorities themselves, had acquired a vested right in the property in question and had been issued a P. T. O. in their favour, jointly with the first appellant. Without giving them any notice or an opportunity to be heard, the Settlement and Rehabilitation Commissioner could not have interfered with their property rights. In so far as he did so, he contravened the principles of natural justice and this circumstance, alone would invalidate the impugned order. To this part of the appellant's case neither Dr. Nasim Hasan Shah nor the learned Attorney ‑General was able to give an answer." Clearly their Lordships were contemplating a case which was in material particulars very similar to the one now before me; in that case too, the persons who are referred as the second and third appellants had been associated with the first appellant and their Lordships are holding that they had acquired a vested right in the property in question and had been issued a P. T. O. If not by reason of the Memorandum then at least on the principles of natural justice this judgment is clear authority for the proposition that a lack of notice would vitiate the order in Question.

7. Mr. Ansari then went on to argue that since it was the respondents' own case that respondent No. 4 had associated sixteen other persons in his book if the loss has to fall upon these persons it should fall upon them pro rata and not that he alone should be made to pay the entire sum of Rs. 14,

400. Now this is really difficult to decide because I have no data as to how much was utilized by whom and in any case those other persons are not parties before me. In any event I am exercising a very limited jurisdiction just now ; I am by no means attempt ing to decide the suit all that is before me is an appeal from the refusal to grant an injunction. In view, in any case of the conclusion that I am reaching upon the main point it is unneces sary to consider this question any further.

8. Reliance was next placed upon the provisions of section 7(3) of the Registration of Claims (Displaced Persons) Act, 1956 (Act III of 1956) which reads as follows:‑ "An order of the Deputy Claims Commissioner revivifying a claim under subsection (2) shall, for purposes of appeal, revision and review, be deemed to be an order under sec tion 6." The argument is re‑enforced by reference to the decision of the Supreme Court in Atta Mohammad v. The Settlement Commissioner (P L D 1971 S C 61), the relevant passage being as follows: "Bearing these principles in mind, I have reached the conclusion that sub‑clause (5) of section 20 of the Act is mandatory in character and places a limitation on the jurisdiction of the revising authority not to make any adverse order, against a person without giving him opportunity to show cause against it. If such an order is made without fulfilment of this pre‑requisite, it would certainly lack jurisdiction:'

9. Now Mr. Burney did not deny that notice was necessary but claimed that the order of 13‑2‑69 itself was a notice. I have already quoted this order in full and I regret, I am unable to find anything in that letter which can be regarded as a notice. It is a final order requiring the appellant to pay the sum in question failing which the property would be resumed. There is nothing in the letter whatever saying that he should within a stated period of time show cause why the property should not be resumed. By no stretch of language can this order be regarded as a notice such as the law contemplates either by reason of the statutes which I have mentioned or on the principles of natural justice.

10. Mr. Burney however maintained that whatever the merits of the matter might be the suit was in any case barred by section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, Act XXVIII of 1958 which reads thus :‑ "Save as otherwise provided in this Act no civil Court shall have jurisdiction In respect of any matter which the Central Government or an officer appointed under this Act is empo wered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act." The bar of jurisdiction however under section 25 is that no injunction, process or order shall be granted by any Court in respect of any action taken or to be taken in exercise of any power conferred by or under the Act. It is to be noted that there is no such expression as "purported to be taken"; if the order itself is without jurisdiction then it is not an order under the Act at all, and I need hardy refer to authority for the proposition that merely because an order is made purporting to be under particular Act then it must be so regarded even though the Act does not give such jurisdiction. Reference however, might be made with advantage to the following passage from Mohammad Tufail v. Abdul Ghafoor (P L D 1958 S C (Pak.) 2011): "According to this section the jurisdiction of the civil Court is expressly barred in the case of an order passed by a Rehabilitation Authority under the Ordinance i.e., in strict conformity with the provisions thereof. Where this is not so, the civil Court cannot be deprived of its powers of inter ference. The protection does not cover an order capriciously made or in flagrant breach of the statute giving the protection."

11. Mr. Burney finally argued that the appellant had a right of appeal under section 19 of the Displaced Persons Act but I really do not see, how that can make any difference. This is a suit and not a petition under Article 98 of the 1962 Constitution or 201 of the Interim Constitution where the existence of an alternate remedy is a bar to the exercise of jurisdiction. The mere fact that an alternate remedy exists is no bar to the maintenance of a suit.

12. I have therefore come to the conclusion that the plaintiff clearly had made out a prima facie case and the balance of convenience clearly also is in his favour. I therefore allow this appeal, set aside the order of the Court below and grant an injunction pending the disposal of the suit restraining the respondents 1, 2 and 3 from interfering with the possession of the plaintiff‑appellant over shop No. B‑153 situated in Sanghar. subject however to the condition that a sum of Rs. 14,400 deposited by them in this Court shall continue to remain deposited pending the disposal of the suit. The appellant shall have the costs of this appeal. A. N. Q. Appeal allowed.