P L D 1966 (W (PLP)

Respondent No. 7 in person. Date of hearing : 11th February 1966. Plot No. E/579, situate in Mohallah Seth Jiwan Mal, Peshawar City, forms subject‑matter of the dispute in this writ petition. Mst. Aisha Bibi, mother of the petitioners, Muhammad Akbar and Muhammad Ashraf, is stated to have put in an applica tion for reservation of this plot in her name on 3rd February 1961. She was informed by the Additional Settlement and Rehabilitation Commissioner by endorsement No. 2441‑49, dated 9th March 1961, that the said plot had been reserved against her offer of 50 above the average auction price of similar plots in the locality by private negotiation under instructions of the Chief Settlement Commissioner, Pakistan contained in his letter No. 10593‑PH -Reh/60, dated 24th June 1960. On this she deposited 1/3rd amount of the probable or estimated value of the plot on 2nd May 1961. Khandey Khan (respondent No. 7) also appears to have applied for reservation of this plot on 5th May 1961 and reservation was made of this very plot against his name also on the aforesaid terms and conditions on 29th May 1961. Meanwhile, on 27th April 1961, Qazi Altaf Hussain (Respondent No. 6) approached the Additional Rehabilitation Commissioner, Peshawar, through the Deputy Director, Intelligence, Government of Pakistan, Peshawar, of which office he is an employee, for reservation of the said plot in his favour, on the ground that the plot in question has been converted by him as katcha house and was being used by him as a residential house for the last seven years and that due to paucity of accommodation in Peshawar it was impossible for him to get a suitable house for shelter. In reply the Additional Settlement Commissioner addressed a letter to him at his office address on 6th May 1961 to deposit 1/3rd of the estimate price to enable him (the Additional Settlement Commissioner) to issue orders for reservation of the plot in his favour, but no deposit appears to have been made by Q. Altaf Hussain. Thereafter, on 30th January 1963, Q. Altaf Hussain again approached the Deputy Settlement Commissioner for transfer of the plot in his favour. However, the Deputy Settle ment Commissioner on 5th March 1963 made a recommendation to the Additional Settlement Commissioner, saying that the plot stood reserved in the name of two persons, namely, Mst. Aisha Bibi and Khandey Khan, and Mst. Aisha Bibi had preferential right, she having applied and deposited 1/3rd estimated price earlier in time as compared with Khandey Khan. Thereafter, the Deputy Director, Intelligence addressed a communication on 29th April 1963 to the Additional Rehabilitation Commissioner advoca ting the cause of Q. Altaf Hussain as a preferential candidate, for the plot saying that Q. Altaf Hussain had applied for the reservation of the plot through his office as early as 14th May 1960 and that the plot in question was in his possession since 1952 and that he should not be made to suffer for the negligence of the clerical staff in misplacing his applications. The Additional Settlement Commissioner, however, replied that notice of reservation issued to Q. Altaf Hussain on 6th May 1961 requiring him to deposit 1/3rd of the estimated price for the plot applied for by him remained un-complied and no reservation could be made m his favour and that stage because the Chief Settlement and Rehabilitation Commissioner, Pakistan had stopped such reservations with effect from 31st May 1961. Then the case entered a new phase. The Additional Settlement Commis sioner, after calling for. a report from the Deputy Settlement Commissioner, passed a further order on 19th August 1963 to the effect that that express orders of reservation of the plot stood in the names of Mst. Aisha Bibi and Khandey Khan, and that the issue of notice of demand of payment of 1/3rd price asking Q. Altaf Hussain to deposit that amount was implied consent for reservation of the plot in Q. Altaf Hnssain's name, but because the same plot had been reserved by his predecessor for three different parties, who bad acquired other evacuee property, the proper course would be to put the plot to auction. He accord ingly cancelled the orders of reservation in favour of Mst. Aisha Bibi and Khandey Khan. Feeling dissatisfied by the order of the Additional Settlement Commissioner, Mst. Aisha Bibi filed an appeal within time, while Khandey Khan has not moved in the matter further. Q. Altaf Hussain also preferred a belated appeal against the order placing the plot in the auction pool and both these appeals have been disposed of by the Settlement Commis sioner by a single order dated 7th October 1963, and the present writ petition is directed against this order.

2. The learned Settlement Commissioner has held that Q. Altaf Hussain had, as a matter of fact, applied for the reservation of the plot earlier in time as compared with Mst. Aisha Bibi and the non‑deposit of the 1/3rd price was also not because of his lapse as the notice of demand did not reach him, and therefore re had a preferential right to claim reservation of the plot in his favour as compared with Mst. Aisha Bibi. On these grounds, the plot in question has been ordered to be reserved in favour of Q. Altaf Hussain.

3. A preliminary objection has been raised by learned counsel for Q. Altaf Hussain as against the maintainability of the Writ Petition, on the ground that the Writ Petition being on behalf of two petitioners should have been accompanied by affidavits of both the petitioners and not by one of them. He argued that the averments in the Writ Petition are to be verified by the petitioners before the Court and in absence of verification by all the petitioners the writ petition is bound to fail. For this argument, he has relied on Tofazzal Hossain and others v. The Province of East Pakistan and others (P L D 1961 Dacca 389), wherein the learned Judges observed as under: "This petition purports to be on behalf of seven petitioners. But inasmuch as only petitioner No. 1, Tofazzal Hossain, has sworn and verified the statements made in the petition and the rest of the petitioners have not done so, we entertain this application in respect of the said Tofazzal Hossain only and reject it in limine, in so far as the rest of the petitioners are concerned. The rules framed by this Court require that the petition must be verified and sworn by the petitioner and/or the aggrieved person." The order of the learned Judges proceeds on the rules framed by the Dacca High Court which rules have not been shown to be pari materia with the rules framed by our own High Court. The relevant rule for the issue of Writs in the nature of mandamus etc. in Part H to Chapter 4, of High Court Rules and Orders, Volume V, runs as follows :‑- "

2. An application for the issue of writs in the nature of mandamus, prohibition, quo warranto and certiorari shall be filed before the Deputy Registrar at Lahore or Additional Registrar at Karachi, Peshawar, Bahawalpur and Quetta and shall set out concisely in numbered paragraphs the facts upon which the applicant relies and the grounds upon which the Court is asked to issue a writ and shall state exactly the nature of the relief sought. Such an application shall be accompanied by an affidavit or affidavits in proof of the facts referred to in the application." A plain reading of the rule shows that the application is to be accompanied by an affidavit or affidavits in proof of the facts referred to in the application and the application is not necessarily to be verified by each of the several petitioners, and if in the instant case the averments in the application are supported by an affidavit of one of the petitioners, the rule on the subject stands substan tially complied with and the petition does not merit dismissal on this ground alone. The observations of the learned Judges of the Dacca High Court are not applicable to the present case and the objection is not available. It may be mentioned that after filing of the writ petition, on respondent No. 6's objection, the other petitioner Muhammad Akbar has also put in an affidavit in support of the petition and the objection (which I have already sheld as untenable) has disappeared.

4. It has been further urged on behalf of Q. Altaf Hussain that the writ petition is not maintainable, because the petitioners are not aggrieved persons under Article 98 of the Constitution Act inasmuch as they have no vested right in the transfer of the plot in question and mere order of reservation does not create any right in their favour. It has been argued that orders of reservation by private negotiation were not contemplated by the provisions of the Schedule of the Act or Scheme No. 6 and for that reasons also no vested right of the petitioners has been violated. I, however, find that instructions for transfer of vacant building sites by negotiation have been promulgated by the Chief Settlement Commissioner with the approval of the Central Government as is evident from page 153 of the Settlement Manual (old edition) and the various other memoranda issued from time to time in that regard, and therefore these instructions are intra vires under section 10 of Act XXVIII of 1958 and the order of reservation in favour of Mst. Aisha Bibi cannot be disregarded on that score. Further the order of reservation and payment of 1/3rd probable price did create a right in the applicant to claim transfer of the property in the absence of any prior applicant and if that right of the applicant is negatived in oblivion of the law and rules on the subject and reservation is cancelled arbitrarily, the applicant will be deemed to be an aggrieved person for purposes of Article 98 of the Constitution Act.

5. Learned counsel for the petitioners has vehemently contested that the order of the Additional Settlement Commis sioner cancelling the order of reservation in Mst. Aisha Bibi's favour amounted to review of the previous order made in the case by the Additional Settlement Commissioner and by virtue of the provisions of Ordinance II of 1962, such an order could not be passed after the 13th of January 1962. The question to be considered in this regard is whether the order of the reservation was an administrative or a quasi judicial order. Certain documents have been placed on the record to show that Mr. Iftikhar Ahmad Khan, Additional Settlement Commissioner, who has held orders of reservation in the present case as orders of executive nature, refused to interfere with similar orders of his predecessor holding them to be judicial orders. Even the Departmental Representative who has appeared on behalf of respondents Nos. 1 to 5, does not sustain the order of the Additional Settlement Commissioner in this respect. However, since the order of the Settlement Commissioner accepting the belated appeal of respondent No. 6 without addressing himself to the question of limitation is patently a bad order, I do not propose to decide this aspect of the case. Tufail Muhammad and others v. Raja Muhammad Zia Ullah Khan and another (P L D 1965 S C 269) refers.

6. Learned counsel for the petitioners made a feeble attempt to argue that orders of reservation of a plot could only be passed by the Additional Settlement Commissioner and not by the Settlement Commissioner who had not been vested with any power in that regard, but as I have already found the impugned order to be a case of absence of lawful authority, this argument need not be examined in detail. Nor am I called upon to consider the argument on behalf of the petitioners that because Q. Altaf Hussain had not paid the 1/3rd price before the last date, namely, 31st May 1961, no reservation could at all be made in his favour.

7. It has been argued on behalf of the respondent that because the petitioners dispute findings of fact of the Tribunal of exclusive jurisdiction with regard to Q. Altaf Hussain having filed his application for reservation of the plot prior in time as compared with Mst. Aisha Bibi as also the further fact that Q. Altaf Hussain actually did not receive the notice of deposit of 1/3rd estimated value, it is not a fit case for interference in writ jurisdiction, but as I have already held above that the Settlement Commissioner was not competent to entertain a time‑barred appeal without an express finding that delay in the case was condoned, the findings of fact arrived at by him, in proceedings, of which he was not competently seized, cannot be successfully canvassed against the petitioners. Further, because both the appeals have been disposed of by the same order, one of which proceedings was not properly before the said officer, it cannot be said with certainty how far his mind has been affected by the extraneous matter and for that reason alone the impugned order stands vitiated.

8. In the result, the writ petition succeeds and the impugned order of the learned Settlement Commissioner is set aside and the case sent back to him for a fresh decision in accordance with law and in the light of the observations made above. However, the parties are left to bear their own costs. K. B, A, Petition accepted.