1987 PLP 441 (SCMR)

MUHAMMAD HALEEM, C.J.‑‑ The dispute in this case relates to House No. 1/142, situate in Lalamusa, District Gujrat. The appellant was a non‑claimant‑optee, a Railways employee, and posted at Lalamusa. He was allotted this house on 13‑1‑1948. On the promulgation of the Settlement Scheme No.I, he filed an N.C.H. Form on 5th August, 1959, and was issued Appendix IX on 16‑1‑1960. The price payable by him, according to this Appendix, was Rs.2,940 plus rent dues and settlement fee of Rs.417 and‑Rs.14.11, respectively. On 21st of May, 1960, he paid the full price, and on 27‑5‑1960, he mortgaged one half portion of the house to Azizullah son‑in‑law of respondent No.2, for Rs.4,

000. Respondent No.1 was a marginal witness of the deed. On 27‑5‑1963, he applied for the issuance of a Permanent Transfer Deed (P.T.D.), but as he had to remain out of Lalamusa in connection with his duties, he executed a special power of attorney in favour of the father of respondent No.1 on 15‑12‑1966 to represent him in this connection before the Settlement authorities. It, however, later transpired that respondent No.2 in collusion with some officials of the Settlement Department created an additional demand of Rs.1,260 as price of the house in dispute. It is the case of the appellant that he had paid the amount to his attorney which was not deposited in his name, but instead he executed an agreement of association transferring the appellant's rights in the property in favour of respondent No.1 (his son), which was approved by the concerned Settlement authority without recording the necessary statements. On 6th of January, 1968, a P.T.D. was issued in favour of respondent No.1. The appellant on coming to know of this surreptitious transfer of his rights in the house, revoked the power of attorney by notice dated 15‑5‑1972. The reply, dated 27‑5‑1972 to this notice further confirmed the surreptitious transaction with the further fact that a P.T.D. had already been issued in favour of respondent No.1. The appellant thereupon filed an appeal before the Additional Settlement Commissioner, who accepted it by order dated 28th February, 1973. While upholding the transfer in favour of the appellant, the Additional Settlement Commissioner meticulously dealt with the matter and discarded the agreement of association for justifiable reasons and remitted the case to the Deputy Settlement Commissioner, Gujrat, with the "direction that he should first check the assessment of the property in question and if some amount is found demanded less, a proper order be passed for its addition in the evaluation price after affording an opportunity to the appellant of being heard." The revision against this order failed and was dismissed by the Settlement Commissioner on 5th of July, 1973, but the respondents succeeded in Writ Petition No. 778‑R of 1973, which was allowed by order dated 18th July, 1979. Leave was granted to consider whether the High Court was in error in going behind the factual finding of the Settlement authorities, and that on the view taken by them the P.T.D. was not sacrosanct and could be set aside in appeal and revision under sections 19 and 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Reliance was placed on Rahim Bakhsh v . Dost Muhammad and another 1982 S C M R 665, Muhammad Ismail and another v . Settlement Commissioner and another 1973 S C M R 407 and Muhammad Anwar Khan v. M.A. Wasti and others P L D 1975 S C M R

372. The High Court relied on the case of Anwar Hussain v. Sarfraz Ahmad P L D 1971 SC 669, and held that "after title had passed on to the persons in whose favour a P.T.D, has been issued the Settlement authorities become functus officio." However, interference could be made where the allotment or transfer was obtained by means of "misrepresentation or fraud" or where there was an error of a type, which could be corrected without embarking upon a formal inquiry or holding "adverse proceeding". On the facts of this case the High Court came to the conclusion that neither there was an error which required rectification in a summary manner nor was it a case where transfer or allotment was obtained by means of fraud or misrepresentation; and if at all, the P. T . D. had to be cancelled it was then necessary to hold a proper inquiry and "give the transferee an opportunity to be heard"; and that the matter under consideration "appears to have been disposed of on mere inferences and conjectures". In the result, the impugned orders of the Settlement authorities dated 28th of February 1973 and 5th of July, 1973, were declared to be without lawful authority. "From the orders passed in appeal revision by the Additional Settlement Commissioner and the Settlement Commissioner it is clear that both the respondents were joined as parties and had the opportunity to contest the proceedings which they did. As on the material before the Additional Settlement Commissioner, he had come to the conclusion that the respondents had surreptitiously obtained the transfer of the appellant's rights in the property on the basis of the power of attorney in which was executed only for the purpose of representing the appellant before the Settlement Commissioner for obtaining the P.T.D. in his favour, but "the Ward Incharge at Lalamusa Town added an amount of Rs.1,260 without initial, in the copy of Appendix IX placed in the file, at his own accord, without obtaining prior orders of competent authority and as such this addition is without lawful authority and void". Further, it was held that no demand notice was, in fact, issued in the name of the appellant under the provisions of Settlement Scheme No. VIII, requiring him to pay an amount of Rs.1,240 which showed the mala fide involvement of the staff of the Deputy Settlement Commissioner's Office, Gujrat to deprive the appellant of his rights in the property. Lastly, the approval for the transfer of the rights in the property was obtained by the Ward Incharge on his own report without obtaining the statement of the appellant before recording the approval. For all these reasons, the transfer was set aside, and the order upheld in revision. Undoubtedly, it is a case of violation of trust reposed in respondent No.2, as he had committed a breach of it by executing an agreement of association in favour of his son which, on the face of it, gave a fraudulent colour to it. Clearly the findings of the Additional Settlement Commissioner were one of fact and the High Court was in error in holding that the transfer was cancelled merely on surmises and conjectures. In the exercise of constitutional jurisdiction it is not open to the High Court to go behind the questions of fact as it were the Settlement authorities which had the jurisdiction to determine them unless any substantial error was found in reaching them. In that event too the High Court could not assume the jurisdiction to determine the questions of fact, but to remit the case to the Settlement authorities for a decision afresh. In the instant case the High Court without applying its mind to the conclusions reached by the Additional Settlement Commissioner which were upheld in revision, a finding was given that they were surmises or conjectures, which was a grave error resulting in injustice to the appellant. We have also examined the power of attorney and are of the view that by its tenor it did not give to the respondent No.2 the power to transfer the rights of the appellant in the property. In this connection, reference may be made to the observations in Fida Muhammad v. Muhammad Khan P L D 1985 SC 341 at p. 344:‑ "Before parting with the judgment, however, it is essential to take note of a widespread misuse of power of attorney in cases like the present one." It is wrong to assume that every "general" power of attorney on account of the said description means and includes the power to alienate/dispose of property of the principle! In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the power of attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deduce able from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation. The second aspect which needs caution on question of validity of acts under a power of attorney is that notwithstanding an authority to alienate principal's property, the attorney is not absolved from his two essential obligations, amongst others: firstly in cases of difficulty (and it will be a case of difficulty if the power of attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g.. if he purchases it himself or for his own benefit, he in hiss own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction." After, Anwar Hussain's case this Court modulated its dicta in the subsequent decisions. In Muhammad Ismail v. Settlement Commissioner 1973 S C M R 407, it was contended that the High Court had failed to consider that the issuance of the P.T.D. deprived the Settlement authorities of any further jurisdiction as the property thereafter went out of the compensation pool, but this contention teas repelled on the ground that the order for the issuance of the permanent transfer deed was still subject to appeal and revision in accordance with the provisions of the Act, 1958. In Muhammad Anwar Khan v. M.A. Wasti, 1975 S C M R 372, Anwar Hussain Sani's case was considered, and it was held that it is a well‑settled proposition that the question whether "P.T.D. in favour of the petitioner was issued in proper exercise of the authority of Settlement Commissioner, is open to judicial scrutiny", and that this would pre‑eminently include "cases of fraud and lack of jurisdiction as valid grounds for the cancellation of a P.T.D.". In Inayat Bibi v. Umar Din 1978 5 C 5t R 163 the argument that the Settlement authorities had lost jurisdiction after the issuance of the P.T.D. to the petitioners was repelled by the High Court which was affirmed by this Court on the ground that the issuance of the P.T.D. itself was not a valid exercise of power as the petitioners had, in the earlier round of litigation, lost upto the High Court. In Mst. Fazal Bibi v. Settlement Commissioner P L D 1983 SC 163, it was held that the Settlement authorities could interfere with the P.T.D. only on proof of alleged forgeries or nullities and not merely for re‑examining the case afresh on a complaint made in that behalf. In Rahim Bakhsh v. Dost Muhammad 1982 S C M R 665, an argument was raised that after the issuance of the P.T.D. the disputed shop was no longer amenable to the jurisdiction of the Settlement authorities. It was held that this contention was without substance as the issuance of a P.T.D. does not take away the appellate and revisional jurisdiction of the relevant Settlement 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. Eminently, therefore, the finality of the P.T.D. can only be pleaded if the transfer is made in accordance with the provisions of the Act, but where there is a fraud or misrepresentation in obtaining the transfer, the matter becomes res integra and open to scrutiny under the provisions of sections 19 and 20 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. Here there is a definite finding of the Settlement authorities that the agreement of association by which the appellant was deprived of his right was the result of a fraud on the part of the respondents who had misused the trust reposed in them. This being so, the High Court was not correct in holding that the proceedings could not be re‑opened. The orders of the Settlement authorities, accordingly, are unexceptionable. In the result, the order of the High Court is set aside and the writ recalled. The appeal succeeds and is hereby allowed with costs. S.Q./4396/S???????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.