P L D 1966 (W (PLP)

(i) That if one is a direct claimant but the other claims indirectly on the basis of the allotment and possession as for example of his son, then a direct claimant is to be preferred to the indirect claimant. Ch. Altaf Hussain and others v. The C. S. C. and others P L D 1965 S C 68 refers. (ii) that if both are claimants then he who obtained the prior possession is to be preferred. The real basis is the possession and in this way there is no difference between an allottee or non‑allottee as both of them are at par, as has been laid down in various rulings of this Court. It will thus appear that the amount of claim being of a bigger or lower valuation has no consideration and cannot constitute an item of preference. The order of the learned C. S. C., which is based on this extraneous consideration will have, therefore to be set aside and declared as being without lawful authority. It was held in The Queen v. Cotham and another, Justices, and Wallace and Webb ((1898) 1 Q B 802), that where the justices have so far departed from the plain words of Act and decided the case upon some extraneous consideration, then they could not be said to have heard and determined the matter in accordance with law. The actual passage at pages 806 and 807 of the report in the words of Wills, J., is as follows:‑ "We have next to consider whether the case is one in which a mandamus ought to be granted directing the justices to hear and determine the matter according to law. It is obvious that the distinction between an erroneous decision and a failure to hear and determine according to law may be very fine, and the cases on the subject show that it is so. I take the governing principle to be that if the justices have applied themselves to the consideration of a section of an. Act of Parliament, and have, no matter how erroneously, determined the question which arises upon it before them, their decision cannot be reviewed by process of mandamus. That is so whether there is an appeal from their decision or not. If there is an appeal, mandamus will not lie; if there is not, their decision is final. But when it appears that they have taken into consideration matters which are absolutely outside the ambit of their jurisdiction, and absolutely apart from the matter which by law ought to betaken into consideration, then they have not heard and determined according to law may give as an instance the case of Reg. Bowman and others. (1898 1 Q B 663) which came before a Divisional Court a short time since. There the justices did something not very far off putting the licence up to a kind of auction, and said that nobody should‑ have it who was not willing to pay 10001. for it. The Court granted a mandamus, holding‑rightly, I think that the justices had taken into consideration matters outside and apart from any of their statutory powers, and therefore, that they had not heard and determined according to law. Another instance is the case, referred to by my brother Kennedy, of Beg. v. De Rutzen (1 Q B D 55), where again the justices had taken into consideration matters outside the statutes under which they purported to act, and the Court granted a mandamus to hear and determine the applica tion before the justices according to law. Here the matters which the justices have into consideration apart from the statute are not stated upon affidavit, but it is sufficient if it can be demonstrated that they must have considered such matters. When it is demonstrated, as it is here, that they granted a licence in respect of a place which was not an inn, and had not theretofore been kept as an inn, and from which there was no person who had kept it about to remove, it is plain that they cannot have decided according to law; they must have acted upon some extraneous consideration not warranted by the statute. It is not a question of a mis construction of the statute. No constructions can alter the plain words of the Act, or make the premises in question premises theretofore kept as an inn, or Wallace a person about to remove from them. It is a case in which the justices have so far departed from the plain words of the Act deciding upon some extraneous consideration, I know not what‑that they cannot be said to have heard and determined according to law. Under those circumstances, I have no doubt that a mandamus is the proper remedy." Similarly in K. B. Muhammad Yaqub v. The Secretary, Provincial Transport Authority, Karachi and another (P L D 1959 Kar. 507) a Division Bench of this Court held as follows:‑ "It is the right of every person in a case where there is public duty cast on a public servant to decide a matter which will affect the interest of a citizen, to have such matter decided. This is a legal right which can be subject of enforcement by means of a writ of mandamus. Writs of mandamus are not issued only for protection of rights of property or status. They are also issued to enforce the right to have a matter decided. The right to have a matter decided means a right to have a matter decided in accordance with law. If there be a consideration on which a public officer is going to act in deciding a matter and by law he cannot take that matter into consideration, a mandamus can be issued to him to exclude such matters from consideration. That is involved in the right of the person concerned to have an application determined in accordance with law. He has a right that the public officer should take into consideration only the matter which the law requires him to consider and give a decision on their basis." Similarly, in Ikram Bus Service v. Board of Revenue, West Pakistan, etc. (P L D 1963 S C 564) the Supreme Court held as follows: "Even an administrative body such as R. T. A. is under legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged in accordance with the law." In the said case the Supreme Court found that the R. T. A had not dealt with the applications before it in accordance with law but rather disposed them of on extraneous considerations and the Supreme Court quashed the orders of that Authority and remanded the case back to them for redecision on merits in accordance with law. Respectfully following the principle laid down in the various above‑noted authorities, I hold that since the C. S. C., has not decided the revision petition in accordance with law, a direction will have to be issued to him to re-decide the said matter after excluding the extraneous consideration and in accordance with, law.

5. As regards the point at (c), this again has a great merit and I have made mention of it in Para. 3 of this order earlier. The learned C. S. C., is wrong in saying that the allottee (if at all) was the respondent himself. The alleged allotment order is Annex. R/5. It is a decision in some revision by a Rehabili tation Commissioner dated 15‑12‑1954. This revision was filed by Muhammad Siddiq, con of the respondent and not the respondent himself. The allotment which this purports to make is in the name of Muhammad Siddiq and not the petitioner. The petitioner in his CH Form also described his son to be in posses sion and made reference to the said order, dated 15‑12‑1954. The D. S. C., in his order, dated 14‑10‑1959, recites the son of the petitioner as an allottee. It is thus obvious that the C. S. C., has misread the record and his order suffers from a patent error on the record when he calls the respondent as an allottee.

6. From what has been said above, it is clear that the order of the C. S. C., suffers from errors patent on the record and is based on extraneous considerations in the matter giving preference to one claimant over the other and is, therefore, without lawful authority and the case will have to be remanded back to him to decide it afresh in accordance with law, as was done in Ghulam Mohy‑ud‑Din v. C. S. & R. C. and others (P L ‑ D 1964 S C 829).

7. The learned counsel for the respondent had no reply to the above points. He, however, submitted that the petitioner in this Court has not come with clean hands and as such her writ petition should be dismissed on this short ground. The actual submission was that Annex. A, which is a certificate issued by the Department to the effect that the petitioner is an allottee, contains, certain such additions which do not exist in the office copy of that certificate as retained in the D. S. C's File. The certificate Annex. A reads as follows:‑ "Office of the Deputy Settlement Commissioner, Sheikhupura." "No. 22873 Dated 15‑10‑1960." "This is to certify that Mst. Taj Bibi wd/o Jamal Din is in possession of portions previously with Sardar Muhammad and Fazal Din since 1‑7‑1948 and 15‑11‑1950 respectively of House No. B. VII S‑2‑104 at Sheikhupura. . "Senior Allottee. Sd. Deputy Settlement Landowner. Commissioner, The house is allotted Sheikhupura." to Mr. Jamal Din. The objection is that the portion underlined' does not exist in the office copy of this certificate in the D. S. C's File and is an addition made by the petitioner herself in Annex. A. The issuance of which, otherwise, is not disputed. On the other hand, the contention of the learned counsel for the petitioner is that the fault is not of the petitioner but of the Department in not retaining a correct copy or may be, he says, the respondent got the real office copy removed and in its place got put up an incomplete sort of office‑copy to take up the present plea in this Court. In view of the order, which I am proposing to pass in this case, namely, to remand the case to the C. S. C., to re-decide the revision petition, afresh according to law, I do not express my own views on this aspect of the case. I may, however, point out that if tote certificate in dispute is ignored, then there exists another certificate in the D. S. C's File at page 54 which reads as follows: "Certified that Jamal Din son "Certificate." of Jani is allottee of House No. VVII‑2S‑104 (Two rooms only) vide Survey Register No. 1/13 with effect from 1st August 1948. (Sd.) Deputy Settlement Commissioner, Sheikhupura." and which can quite properly be pressed into service by the petitioner to advance her case. In that view of the matter, since another certificate also exists in the D. S. C's File and since the point raised by the learned counsel for the respondent is such which is under controversy and for which I have no proper material on this record to decide and also because I am remanding the case (including the question as to whether the petitioner is an allottee or not and as to whether the respondent's son was allottee of the whole house), I cannot give effect to the objection raised by the learned counsel for the contesting respondent.

8. It was next contended by the learned counsel for the respondent that even if the order of the C. S. C., is to be ignored then there are the orders of the other subordinate Settlement Authorities which, he submitted, were quite right on the merits of the case and, as such, the case should not be remanded. On the other hand, learned counsel for the petitioner raised a number of objections with regard to those orders as well as inter alia challenged that the said orders suffer from the same defects which exist in the order of the C. S. C. (including many other defects) and were, therefore, in no way correct or lawful orders. I think I need not go into this controversy because) some of the objections of either side were such which were of factual nature and the Court of the C. S. C., would be the best forum for their scrutiny and adjudication and not this Court.' Even otherwise also the law as laid down by their Lordships of the Supreme Court in Syed Aamat Ali v. C. S C. and others (P L D 1964 S C 260) is that where the order of any local tribunal is found to be suffering from illegalities, the proper course is to remit the case back to that forum.

9. For the various reasons given above, I accept this writ petition and declaring the orders of the C. S. C., as to be without lawful authority remand the case back to him to decide the revision petition, of the petitioner afresh in accordance with law after notice to all the parties concerned and after taking such points which the parties may raise before him. There will be no order as to costs. K. B. A. Petition accepted. Case remanded.