P L D 1967 Karachi 258 (PLP)

This order will dispose of Writ. Petition No. 596 of 1961, Writ Petition No. 3 of 1962 and Writ Petition No. 4 of 1962 in which common question of law is involved. All the Writ Peti tions are directed against the order of the Settlement Com missioner dated the 24th November, 1961. By a common order the learned Officer set aside the transfers in favour of the petitioners on the ground that they have obtained the property by a fraudulent means.

2. In all the three matters the learned Settlement Commissioner under his suo motu revisional power issued a joint notice to consider the validity of the transfer of a number of shops and houses, 13 in number, in Sukkur u/s 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act 1958 (hereinafter called the Act). . These cases were sent to him for disposal on receipt of information though the Secre tary (Urban) to the 'Chief Settlement and Rehabilitation Com missioner that irregularities were alleged to have been commit ted by the transferees concerned for the transfer of the properties. It may be mentioned that Muhammad Tufail, Petitioner in Writ Petition No. 596 of 1961 and Munawar Khan, Petitioner in Writ Petition No. 3 and No. 4 of 1962 are two brothers. In Writ Petition No. 596 of 1961 premises bearing Sur vey Nos. B/761 and 808 situated at Dal Bazar, Sakkur was claimed, in the first instance, as allottee by Munawar Khan, the brother of the Petitioner on the ground that he was their allottee which he had reconstructed, and being in possession was entitled to its transfer on "P" Form. During the pendency of this Form, the property in dispute was auctioned with the reserved price of Rs. 52,000 and was purchased by one Habib, son of Sikandar for h'5. 95,

000. On the representation of Munawar Khan, the Deputy Settlement Commissioner rejected his "P" Form and the above‑mentioned auction was held on 30th May, 1960. Munawar Khan filed an appeal before the Additional S. C. which was rejected. The Additional S. C. however, did not approve the auction in favour of Habib and a fresh auction was held in which the Petitioner, being the highest bidder for Rs. 31,000, was declared as successful bidder. The auction in his favour was confirmed on 18th October, 1960, and a P. T. O was issued to him on 29th December, 1960. The matter was brought to the notice of the Chief S. C. It was urged by the Enforcement Police that the property in dispute had been auctioned at a very low price in collusion with the subordinates of the Settlement Authorities. This case was sent to Mr. Abdul Rauf Chaudhury, the Settlement and Rehabilitation Commissioner, Sukkur at the material time for disposal u/s 20 (3) of the Act.

3. In Writ Petition No. 3 of 1962 the property in dispute is premises No. B/1398/l, 2, 3 and B/1401 situated at Dhak Road, Sukkur. This property consists of shops and residential portion above them. There are seven shops in the ground floor which were occupied by different persons who had applied ('or their transfer on CH, CS, NCH and NCS Forms. It is alleged that they refused to accept the property at the evaluation price shown in the Appendix and, as such, the entire premises were dis posed of by public auction held on 26th November, 1960. In this auction the petitioner offered a bid of Rs. 52,000 against the reserved price of Rs. 214,

560. This bid is alleged to have been approved by the Additional S. C. The Department's case, however, is that no such acceptance was given. This case was also brought to the notice of the Chief S. C. by his Secretary (Urban) and was sent for scrutiny to Mr. Abdul Rauf Chaudhry, the then Settlement Commissioner, Sukkur. In Writ Petition No: 4 of 1962 the property in dispute is premises No. B/2649 situated at Shahi Bazar, Sukkur. It consists o: a shop and a room on the ground floor and a residential portion on the first floor. It was in possession of Muhammad Tufail, the brother of the petitioner, who, in association with Abdul Matin, applied for its transfer on CH Form. On 22nd November, 1959 this pro perty was transferred to Abdul Matin at an evaluation price of Rs. 12,

000. The LH Form filed by Muhammad Tufail which related to the first floor was rejected. It, however, appears that this property was also auctioned on 30th May, 196U, with a reserved price of Rs. 16,800 and was purchased by Habib, son of Sikandar for Rs. 41,

000. On the representation of Abdul Matin the auction was cancelled but the CS Form of Abdul Matin was also cancelled and the property was put to re‑auction. In the auction held on 1st September, 1960, Munawar Khan's bid for Rs. 13,0C0 being the highest was accepted and a P. T. 0. was issued to him on 10th November, 1960. This case was also brought to the notice of the Chief S. C. by his Secretary (Urban) and was sent to Mr. Abdul Rauf Chaudhry, the then S. C. Sukkur, for disposal a/s 20 (3) of the Act.

4. As stated earlier, Mr. Abdul Rauf Chaudhry by order dated the 24th. November, 1961 set aside the above‑mentioned three transfers on the ground that they were obtained by fraud and that the properties had been disposed of at a very low price in collusion with the officers of the Settlement Authori ties. It will, however, be noticed that in all the three cases the Petitioners raised an objection that Mr. Abdul Rauf Chaud dhry had no jurisdiction to pass any final order in them because his appointment later on was confined only to Karachi ; and Chaudhry Sultan Muhammad another Settlement Commissioner had been appointed to hold the office of Settlement Com missioner for Hyderabad and Khairpur Divisions. It was also urged before him that no suo motu proceeding could be taken can the basis of a reference from the Secretary (Urban) to the Chief S. C. Both the contentions were rejected by the learned Officer on the following observation : "The Chief Settlement and Rehabilitation Commissioner has only conferred on Ch. Sultan Muhammad a concurrent jurisdiction with that of mine so far as Hyderabad and Khairpur Divisions are concerned. He has not withdrawn my jurisdiction. Suo motu proceedings can be taken up not only oft the reference of any officer of the Settlement Organiza tion, but also on receipt of a confidential information."

5. Mr. Abdul Hafiz Pirzada has attacked the order of the learned Settlement Commissioner both on merits and on legal points. The learned counsel appearing for the Petitioners has challenged the jurisdiction of Mr. Abdul Rauf Chaudhry to pass a final order in the Revisions pending before him. His contention is that at that time when the Chief S. C. referred the above‑mentioned cases for disposal to Mr. Abdul Rauf Chaudhry he was the Settlement Commissioner of Karachi, Hyderabad and Khairpur Divisions. Later on, however, on 3rd October, 1961, Chaudhry Sultan Muhammad, P. C. S. was appointed Settlement Commissioner for Hyderabad and Khairpur Divisions and all cases thereafter pending before Mr. Abdul Rauf Chaudhry of the above‑mentioned Divisions stood trans ferred to his file. The learned Counsel contended that, in view of this fresh appointment, Mr. Abdul Rauf Chaudhry had no jurisdiction in the matter and should not have proceeded to pass a final order after an objection had been raised by the Petitioners on his competency to deal with them. It is not disputed by the Department that this objection was raised by the Petitioners before Mr. Abdul Rauf Chaudhry. From Annexure G produced at page 55 of the record of W. P. 362 it appears that the Chief S C by Notification dated the 3rd October, 1961 in supersession of all previous order fixed the jurisdiction of Settlement Commissioners in the following manner. S. No. Name of Officer. Area of jurisdiction H: Qtrs.

8. Ch. Sultan Muhammad, Hyderabad, Khairpur, Lahore P.C.S. Quetta and Kalat Divisions.

9. Mr. Abdul Rauf Karachi Chaudhry It is therefore quite clear that after 3rd October, 1961, Mr. Abdul Rauf Chaudhry had no longer any jurisdiction to‑con duct cases as Settlement Commissioner in respect of Hyder abad and Khairpur Divisions. Sukkur being in Khairpur Divi sion, the learned Officer, prima facie, had no jurisdiction to deal with the cases pending before him of that area.

6. Major Ishaque Muhammad Khan, the learned repre sentative of the Department, as his characteristic is, very candidly placed before the Court all the material to show the circumstances in which the above‑mentioned three cases were sent for disposal to Mr. Abdul Rauf Chaudhry, Settlement Commissioner, Hyderabad, Khairpur and Karachi Divisions. The file shows that the Secretary (Urban) to the Chief S. C. on 28th June, 1961, brought to the notice of the Chief S. C. a large number of cases by which properties have been‑ trans ferred at very low prices and in which a number of irregu larities have been committed. Towards the end of the noting the learned Officer suggested as under "Messrs Abedi, Zaidi, Abdul Razaq and Khalid are no longer in the organization but the above cases show how thick all these officers were with Munawar and his party. In my opinion the records of the cases may be forwarded to the Settlement Commissioner, Karachi for exercising the revi sional powers under S. 20 of the Displaced Persons (Com pensation and Rehabilitation) Act." On 1st July, 1961, the Chief S. C. asked for the advice of the S. C. Legal, who, on examination, made the following suggestions: "

1. S. C., Karachi may be directed to call for the records of all these cases, hear the parties and pass orders u/s 20 (3). 'He should do so within 3 weeks. Thereafter when he arrives at a conclusion that anybody has committed an offence, he may hand over the case to the Police by sending a copy of his judgment in which he should also discuss the aspects of criminality, that have crept, into these pro ceedings.

2. It would be inadvisable to hand over the case to the Police before the existing orders are duly set aside by the S. C.

3. The S. C. may also be directed to issue a stay order (pending his decision) when the records (which are here) are received by him. This will stop the making of the entries of ‑permanent transfers which are now being taken in hand." Thereupon, the learned Chief S. C. passed the following order on 8th July, 1961 : "I agree with the advise of S. C. (L) above.‑ Issue orders accordingly." It is in these circumstances that the above‑mentioned these cases came up for disposal before Mr. Abdul Rauf Chaudhry. Major Ishaque Muhammad Khan has urged in all seriousness that, although the S. C. (Legal) recommended that the matter may be sent for disposal to the Settlement Commissioner, Division, but in fact the above‑mentioned cases were transferred to him u/s 32‑A of the Act. This provision of law reads as under "32‑A. Transfer of cases pending before the Chief S. C. Subject to the provisions of this Act and the ‑rules made thereunder, the Chief S. C. may transfer any case pending before him to any Settlement Commissioner, or an Addi tional Deputy or Assistant S. C., or to any other officers, for report or disposal." The representative of the Department urged that the matter could not come up before the Settlement Commissioner under any other provision of law and, therefore, this Court should hold that the above‑mentioned cases, though not specifically trans ferred under the above‑mentioned section were in law transfer red to Mr. Abdul Rauf Chaudhry under it. In support of his contention the learned Counsel referred to a decision of the S C in Piao Gul v. The State (P L D 1960 S C 307). In that case the Political Agent exercising powers of a Court of Session at Peshawar took the case for pronouncement of the judgment to the Jamrud Fort in a special area. In the order which was passed by the learned Officer he described himself as District Magistrate. It was contended that the officer concerned did not try the case as Political Agent but as District Magistrate and, there fore, it was bad in law. Their Lordships repelled this conten tion on the following observation : "In that view of the matter, the solitary misdescription in the charge, i.e. where the Court described himself as District Magistrate would be without effect upon the legality of the trial. It would be a misdescription which was de monstrably incorrect, falling within the maxim falsa demons tratio non nocet. It would therefore be without effect upon the validity of the proceedings provided that the person conducting those proceedings possessed in himself the capacity to do so. Mr. Faridullah Shah as Political Agent possessed the capacity of a Court of Session to try the charges against Piao Gul, and to impose a sentence of 14 years' imprisonment." This ease is distinguishable because in that ‑case the officer concerned was acting both as Political Agent and as District Magistrate. In the present case, there was an inherent lack of jurisdiction in Mr. Abdul Rauf Chaudhry after his jurisdic tion was confined only to cases relating to Karachi. The principle laid down in the S C decision, therefore, cannot be applied on the facts of the present case. Ordinarily, the law is that, if any authority lacks jurisdiction to try a case, even a plea of waiver to its jurisdiction would not validate the order of that authority. In Ledgard and another v. Bull (13 I A 134) a suit was instituted in the Court of the Subordinate Judge, who was incompetent to try it. The same was transferred by consent of the parties to the Court of the District Judge for convenience of trial. It was held that such transference was incompetent, anti that such consent did not operate as a waiver of the plea to the jurisdiction which was taken in the defend ant's written statement and subsequently insisted upon. This is a leading authority of the Judicial Committee on the point under consideration. It is, therefore, quite clear that unless Department is able to satisfy that Mr. Abdul Rauf Chaudhry had jurisdiction in the matter the impugned order is illegal and cannot be maintained.

7. The contention of the learned representative for the Department that the case in question were transferred to Mr. Abdul Rauf Chaudhry u/s 32‑A of the Act is also not well founded. From the above it is quite clear that the learned Chief S C had not entertained these cases on the Judicial side. Report was made to him who, on the advice of Secretary (Urban and Legal) sent these cases for disposal to Mr. Abdul Rauf Chaudhry u/s 20 (3) of the Act, namely, in his revisional jurisdiction. I might have accepted the contention of the De partment had the case been entertained by the Chief S C in his revisional jurisdiction. No such notice was issued by him. The cases were not registered before him for judicial consideration. In my view, therefore, the order by the learned Chief S C who sent the above‑mentioned cases to the Settlement Commissioner can only be considered to have been made under S. 9 (3) of the relevant enactment. Under S. 9(3) all the Settlement Authorities are to function under the superintendence and control of the Chief S C. Since Chief S C could also send this case under S. 9 (3) to the Settlement Commissioner the contention of the Department that the case was transferred to Mr. Abdul Rauf Chaudhry only under S. 32‑A of the Act cannot be accepted as sound.

8. It was next contended by Major Ishaque Muhammad Khan that the Petitioners have no locus standi since the auction confirmed in their favour was not proper and had not been approved by a competent authority. This is a bare allegation and, unless it is established, it is not possible for me to hold that the auction in dispute were not confirmed by a proper authority. In my opinion, since the P. T. O. had been issued to the Petitioners, they have locus standi to file the petitions under consideration.

9. The learned representative of the Department further contended that the Petitioners have committed a fraud and that ultimately the transfers in their favour are bound to be set aside. Therefore, this Court cannot issue an effective writ. In support of his contention he has relied on Sh. Rahmat ullah v. The Deputy Settlement Commissioner Centre `A' (Karachi and others) (P L D 1963 S C 633). In reply Mr. Abdul Hafiz Pirzada has relied on a decision of the S C in Ghulam Mohiuddin v. Chief Settle ment Commissioner (Lahore and others) (P L D 1964 S C 829). The learned Counsel has relied on the following passage of the observations of their Lordships : The reason given by the learned Single Judge for refusing to interfere with the Chief S C's order does not appear to us to be a valid reason for not quashing his order and directing him to deal with the Petitions pending before him in accord ance with law. Even if the Chief Settlement Commissioner after dealing with these petitions in accordance with law come to the same conclusion and re‑affirms his previous decision that would not render the order made in the writ jurisdic tion infructuous, for, the superior Court in its writ jurisdiction does not presume to tell the inferior Tribunal what it should decide but merely directs it to decide according to law, If this is done, no matter what the decision, the order of the superior Court is complied with and no question of rendering it infructuous arises." To view of this clear observation the mere fact that ultimately the transfers in favour of the petitioners are likely to be set aside, it would be no ground for this Court to decline to exercise its writ jurisdiction.

10. After carefully considering the arguments advanced by the learned Counsel for the parties. I am satisfied that the impugn ed order is without jurisdiction and cannot be sustained. I may, however; observe that the objections of the Petitioners that Mr. Abdul Rauf Chaudhry was not competent to exercise his sun motu revisional power on the report made by the Secre tary (Urban) has no force whatsoever. Mr. Abdul Rauf Chaudhry rightly and properly issued notices in the above mentioned three matters. These matters on appointment of Chaudhry Sultan Muhammad should have been forwarded to him for disposal on merits. I would, therefore, hold that these Revision Petitions are still pending and direct the res pondents to place them for disposal before the Settlement Commissioner, Sukkur.

10. In the result, subject to the above remarks, the petitions are allowed with no order as to costs. K. B. A. Petition accepted.