1989 PLP 1096 (MLD)

(f) Constitution of Pakistan (1973)‑‑ ‑‑‑Art.199‑‑Constitutional jurisdiction, object of‑‑Object of Constitutional jurisdiction is to foster justice and not to defeat it‑‑High Court in exercise of Constitutional jurisdiction, cannot permit a party to retain ill gotten wealth. Ch. Muhammad Rafique Khan for Petitioner. Ch. Muhammad Nazir for Respondents Nos.1 and

2. Ch. Abdul Aziz for Respondent No.3. Date of hearing: 25th February, 1989. This petition under Art.199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the order, dated 10‑4‑1974 of the Additional Settlement and Rehabilitation Commissioner, Lahore, whereby he dismissed the petitioner's revision petition against the order, dated 24‑10‑1972 of the Deputy Settlement Commissioner, Centre‑111, Lahore, whereby he refused to declare the deed of association executed by Mst. Jannat Bibi, mother of the petitioner, in favour of Muhammad Yaqoob, respondent No.3, as without lawful authority on the ground that it had already been approved and acted upon.

2. The dispute in this case relates to property No.D/1367, Wichhowali, Lahore. It was transferred to Mst. Jannat Bibi, the mother of the petitioner, as a claimant occupant of the same, by order, dated 21‑6‑1960 of the Assistant Settlement Commissioner with powers of the Deputy Settlement Commissioner, Centre‑111, Lahore. Provisional Transfer Order No.657299, dated 21‑6‑1960 was also issued to Mst. Jannat Bibi.

3. Mst. Jannat Bibi died on 5‑12‑1964, as per certified copy of the death certificate placed on record of this Court by the learned counsel for the contesting respondent. After her death, Muhammad Yaqoob, respondent No.3, submitted an application to the Deputy Settlement Commissioner, Circle 111, Lahore, for the approval of the deed of association, purported to have been executed by Mst. Jannat Bibi in his favour, whereby she surrendered her rights in the property in dispute in favour of respondent No.3. A note, dated 21‑1‑1965 way, written on this application by an unidentified official of the Settlement Department and marked to the Deputy Settlement Commissioner. The note reads:‑‑ "The above‑noted property stands transferred in the name of Mst. Jannat Bibi. She has paid the value of the property. Some amount is still due. The deed is in order. Now she wants to surrender her full rights in favour of Muhammad Yaqoob vide agreement deed attached herewith. The approval of the P.T.O. may be amended."

4. The Deputy Settlement 'Commissioner without independently applying his mind, merely initialled the said report on 1‑2‑1965. This was followed by an amended Provisional Transfer Order in favour of Muhammad Yaqoob respondent No.3. There is also on the file of the Settlement Department an order of the Deputy Settlement Commissioner, Centre‑111, Lahore whereby he direct that the Permanent Transfer Deed be issued to respondent No.3. Respondent No.3 claims that in pursuance of the said order, the Permanent Transfer has since been issued to him.

5. Learned counsel for the petitioner contends that deed of association was a fabricated document and in any case, it could not have been accepted by the Deputy Settlement Commissioner on the application of respondent No.3, in that, Mst. Jannat Bibi was admittedly not alive when the deed of association was approved. Ch. Abdul Aziz, learned counsel for respondent No.3 argued that the deed of association was duly executed by Mst. Jannat Bibi during her life time and, therefore, there was no bar for its approval by the Settlement Authorities, on the application of respondent No.3 even after her death.

6. The submission of Ch. Abdul Aziz is devoid of any force. In the first instance, the record of the Settlement Authorities, which I have perused with the assistance of learned counsel for the parties, does not show that the original copy of the deed of association purported to have been executed by Mst. Jannat Bibi in favour of respondent No.3 was placed on record. The Settlement record contains a copy of deed of association attested by an Oath Commissioner but a written document can only be proved by the instrument itself. Learned counsel for respondent No.3 argued that the original has been removed from the tile by the petitioner and replaced by the attested copy. This is a bald allegation and a disputed question of fact which cannot be examined in these proceedings. I am therefore, inclined to hold that the copy of the deed of association attested by the Oath Commissioner could not be approved by the Deputy Settlement Commissioner unless the non‑production of the original was accounted for.

7. Be that as it may, even if it is assumed that the original deed of association has been destroyed or lost, the impugned order of the Deputy Settlement Commissioner is liable to be set aside on the short ground that no notice was issued by him to the legal heirs of Mst. Jannat Bibi, who had a right to he heard before: approving the decd. The deed could not have been accepted by the Deputy Settlement Commissioner without examining the parties, inasmuch as, the; deed had to, be accepted or denied before necessary order could be made by him. Furthermore, approval of the deed of association by the Deputy Commissioner vide his order, dated 1‑2‑1969 is a nullity, in that, at the time of approval of the deed of association Mst..1annat BIN was admittedly not alive.

8. When confronted with this situation, learned counsel for respondent No.3 placed reliance on Mst. Fazal Bibi v. Settlement Commissioner (P L D 1983 S C 163), to contend that the acceptance of the deed of association did not suffer from any legal flaw. In the precedent case, one of the questions for consideration was whether a deed of association entered into between a claimant and non claimant is permissible. In this context, it was observed that initially the association wits restricted to claimants alone but later with a view to protect the interest of the transferees, the restriction was removed and the facility of association was made available to the non‑claimants as well on the 15th January, 1964 and 5th of February, 1964, they were permitted even to surrender all the rights in favour of associates, non‑claimant or local. In the instant case, however, the objection is not that a claimant has entered into an association with a non claimant but the objection is that Mst. Jannat Bibi was dead when the deed of association was accepted and that even during her life time no notice was issued to her. This authority on the face of it is distinguishable and is not attracted to the facts of the present case.

9. Learned counsel for respondent No.3 next contended that the revision petition was barred by time and the Additional Settlement Commissioner declined to condone the delay. This was within his competence and, therefore, the order refusing to condone the delay is not challengeable in writ jurisdiction. In support of his contention, reliance was placed on Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner (P L D 1966 S C 276). This case is also distinguishable, in that, in the instant case, the impugned order is a nullity and no period of limitation would run against such an order. This Court, in the exercise of writ jurisdiction, cannot permit a party to retain ill‑gotten wealth. If the writ petition is not accepted, it would tantamount to perpetuate grave injustice. The object of writ jurisdiction is to foster justice and not to defeat it. No other point has been urged 63, learned counsel for the parties.

10. In view of the above, the impugned orders of the Settlement Authorities are declared as without lawful authority and of no legal effect. Any proceedings done or action taken in pursuance of the said orders are also declared as without lawful authority and of no legal effect. The result is that the approval of the deed of association purported to have been executed by Mst. Jannat Bibi in favour of respondent No.3 is declared as without lawful authority and of no legal effect. Any transfer documents issued in pursuance of the approval of the deed of association are also declared as without lawful authority and of no legal effect. The writ petition is accepted with costs. H.B.T./A‑556/L Petition accepted.