P L D 1969 Karachi 401 (PLP)

Constitution of Pakistan (1962), Art. 98‑Mistake of fact

When open to attack in writ jurisdiction. A mistake of fact does not ordinarily make an order open to attack, under Article 98 of the Constitution, as without lawful authority and of no legal effect, unless the error is of such a glaring character as to lead to the conclusion that the ostensible exercise of jurisdiction was in reality no exercise. Such an error can be said to have been committed if a material part of the opinion is formed on the assumption that a material piece of evidence exists while it does not, or is formed in disregard of an existing and material piece of evidence, or is formed on the basis of a piece of evidence which was so understood and used as may amount to failure to take the existing evidence into consideration and to taking into consideration of evidence which does not exist, provided the error is so glaring and patent that it may not be acceptable as an error of judgment. The reason is that beyond a certain point of lack of care and understanding in respect of facts, negligence and misunderstand ing become questions of law and jurisdiction, because no authority is expected to exercise jurisdiction in such a manner as to make it a farce. Hafiz Abdul Hakim and others v. Muhammad Anwar Khan and others P L D 1963 Lab. 63 and Habitullah Khan and another v. Election Tribunal, Jhang P L D 1962 Lah. 797 ref. This petition under Article 98 of the Constitution, has been filed by Mst, Kaneez Fatima to question the refusal of the Settlement Authorities to transfer that portion of the property which was and continues to be in her possession. There are five orders by which her claim was rejected; therefore, she questions all of them. They are Annexures `C' dated 9‑1‑1960, `D' dated 13‑4‑1960, `E' dated 5‑1‑1960, ` F' dated 1‑8‑1960 and `F‑1' dated 29‑8‑1961.

2. The facts which give rise to this petition are that in Fort Area, Hyderabad, there are two residential buildings which are situated in one courtyard. The bigger building has been trans ferred to one K. B. Jaffar, and there is no dispute about it. The smaller building consists of two floors. The ground floor was occupied by respondent No. 6, Mst. Zainab Khatoon and one Mohd. Siddiq, and the first floor was occupied by the petitioner and two others. The petitioner did not originally apply for the transfer of the portion which was occupied by her, and the other two occupants of the first floor withdrew their claim in favour of respondent No.

6. The result was that Mohd. Siddiq, who had applied for the transfer of that portion of the ground floor which was in his possession, was given that portion. But respondent No. 6 had applied for the transfer of the whole building to her on the 22nd of June 1959. Since the petitioner bad not applied for the transfer of that portion of the first floor which was in her possession, and the other two occupants of the first floor had withdrawn their claim in favour of respondent No. 6, an appendix was issued in favour of respondent No. 6 on the 10th of November 1959 in which the property was transferred to respondent No. 6. "First floor, and ground floor in possession." SCHEDULE OF PROPERTY H. No. E/39‑2848 Fort Area, Hyderabad (F. F. and G. F. in possession) Seal (Sd.) ASSISTANT SETTLEMENT COMMISSIONER In the Schedule of transferee, the name, parentage and address of the transferee as well as her occupation are mentioned as follows:‑ SCHEDULE OF TRANSFEREE Name Son/Daughter Address Share in Property

1. Mst. Zainab w/o Qazi Zahoor ul Hasan F/39‑2848 Fort Area. Portion in possession (Sd.)‑--Jawed 2 . .. . .. (Sd.) Assistant Settlement Commissioner.

3. After about 1 months, the petitioner submitted her C. H. Form for the transfer of that portion of the first floor of the property which were in her possession, but it was rejected by the Assistant Settlement Commissioner on the 9th of January 1960 because it was already transferred to respondent No.

6. The order was made entirely on the basis of appendix dated 10th of January 1959 and the P. T. O. Annexure `A' dated the 19th of November 1959. No amendment of the appendix had, until then, been issued.

4. The petitioner, went in appeal, which was dismissed on the 13th of April 1960, vide Annexure `D'. The opening sentence of the order is as follows:‑ "This is an appeal of Mst. Kaneez Fatima (the present petitioner) against the order of the Assistant Settlement Commissioner rejecting her C. H. Form of the transfer of House No. E/39‑2848, on the ground that the portion in possession of the appellant has been transferred to Mst. Zainab Khatoon, respondent No. II (the present respondent No. 6) The petitioner then went in revision to the Additional Settlement Commissioner, and thereafter to the Settlement Commissioner, both of which revisions were rejected on the 15th of June 1960 and the 1st of August 1960, respectively. She then preferred a third revision to Mian Ghulam Shabbir, a Settlement Commissioner with the powers of the Chief Settle ment Commissioner. He dismissed it on the 29th of August 1961.

5. The petitioner further pressed her point of view by filing a review application before the last‑named officer, who accepted it on the 8th of November 1961, with the following remarks: "The petitioner's contention is that in my order mentioned above (dated the 29th of August 1961), I have wrongly mentioned that the whole of the property was transferred to the respondent on 19‑11‑

59. I have consulted the record. It is a fact that the portion of the respondent was transferred to her on 19‑11‑59 and the portion in possession of the petitioner was subsequently transferred to the respondent on 30‑9‑

66. The petitioner filed her Settlement form (C. H. Form) on 11‑1‑60, i.e. before the transfer of the property in her possession to the respondent. Both the parties are claimants; I, therefore, allow the review and order that the property should be transferred on the basis of possession."

7. Respondent No. 6 had obvious reasons to be dissatisfied with the above‑quoted order, and filed a Writ Petition bearing No. 71 of 1962 to question it. One of the grounds was that Mian Ghulam Shabbir had no power of review. This conten tion was not accepted by the present Chief Justice, with the result that he dismissed it on the 10th of January 1963. But leave to appeal was granted by the Supreme Court, which also came to the conclusion that Mian Ghulam Shabbir could not review his order, but made the following observations at the end of its Order: "The Settlement Authorities would be directed to ignore it (Ghulam Shabbir's order of the 8th of November 1961), and to give effect to the previous order of Mr. Ghulam Shabbir passed in revisional jurisdiction as a delegate of the Chief Settlement Commissioner, unless it (the previous order of the 29th of August 1961), is in the meantime set aside by due process of law."

8. The present petition has been ‑ filed on the basis of the above observation of the Supreme Court. The contention of the petitioner is that the five orders of the Settlement Department, Annexures C, D, E, F and F/1, to which reference has been made above, have been made without lawful authority, and are of no legal effect, because they are inter alga the result of gross mistake of fact, which is apparent on the face of the record and because, as found by Mian Ghulam Shabbir, the portion which is in the occupation of the petitioner was not transferred to respondent No. 6, vide the original appendix dated the 10th of Novem ber 1959 or the P. T. O. dated the 19th of November 1959 but by virtue of an amended appendix which was issued on the 30th of September 1960. These are the only grounds which counsel for the petitioner has pressed before me.

9. The first question for decision is whether there is a gross mistake of fact in the five orders, Annexure C, D, E, F and F/1. A mistake of fact does not ordinarily make an order open to attack, under Article 98 of the Constitution, as without lawful authority and of no legal effect, unless the error is of such A a glaring character as to lead to the conclusion that the ostensible exercise of jurisdiction was in reality no exercise. Such an error can be said to have been committed if a material part of the, opinion is formed on the assumption that a material piece of evidence exists while it does not, or is formed in disregard of an existing and material piece of evidence, or is formed on the basis of a piece of evidence which was so understood an used as may amount to failure to take the existing evidence into consideration and to taking into consideration of evidence which does not exist, provided the error is so glaring and patent that it may not be acceptable as an error of judgment. See in this connection Hafiz Abdul Hakim and others v. Muhammad Anwar Khan and others (P L D 1963 Lah. 63) and Habitullah Khan and another v. Election Tribunal, Jhang (P L D 1962 Lah. 797). The reason is that beyond a certain point of lack of care and understanding in respect of facts, negligence and misunderstand ing become questions of law and jurisdiction, because no authority is expected to exercise jurisdiction in such a manner as to make it a farce.

10. In this case, counsel for the petitioner has relied on the order of Mian Ghulam Shabbir dated the 8th of November 1961, and the observations of his Lordship the Chief Justice in paragraph 6 of the order by which Writ Petition No. 71 of 1962 of the petitioner was dismissed. I have produced the relevant portions from the order of Mian Ghulam Shabbir, and a reference to it will show that he has relied on an order of the 30th of September 1960 which is non‑existent. The learned Chief Justice has relied on amended Appendix 10 dated the 30th of September 1960 and has observed that Mian Ghulam Shabbir also intended to refer to the same document. The relevant observations are as follows:‑ "The second objection that the remarks of the learned Officer (Mian Ghulam Shabbir) that the transfer in respect of the portion in possession of respondent No. 2 was made on 30‑9‑1960, are not according to facts, is correct. But in this respect there appears to be clerical mistake. Mr. Rahim has himself conceded that probably the officer concerned was referring to the P. T. O. issued in favour of the petitioner on 30‑9‑1960. This appears quite correct, because the first P. T. O. which was issued in favour of the petitioner, was in respect of the first floor and ground floor in her possession. But in the amended P. T. O. the description of the property trans ferred to her was shown as under "House No. E/39/2818, Fort Area, Hyderabad. Portions in possession and upper portion under possession of Mst. Kaneez Fatima'."

11. In elucidation of the above observations, I may mention that no amended P. T. O was issued but an amended appendix was issued on the 30th of September 1960 in which the descrip tion of the property, reproduced in the above quotation, is contained. It is not clear as to why the amendment was issued, because there is no order excepting one relating to the bigger property, the whole of which was transferred, as mentioned above, to K. B. Jaffar, and about the value of which there was some dispute. While determining that dispute, an order was made on the 26th of February 1960, as follows:‑ "Appendices already issued shall be modified and amended accordingly." "In this P. T. O. as I have already stated, the property transferred to the petitioner was the first floor and ground floor in her possession. The clarification was made only in the amended P. T. O. (appendix)."

12. After coming to the conclusion that the amended appendix was mere clarification, his Lordship has proceeded to refer to the basic order, and observed as follows:‑ "For the first time, the entire ground floor was transferred to her (respondent No. 6) under the orders of the Deputy Settlement and Rehabilitation Commissioner dated the 13th of April 1960, by which respondent No. 2's (the present petitioner) claim in respect of the portion in her possession, was rejected." A reference to the order of that date, shows that it was short one, and the portion which apparently was in the mind of the learned Chief Justice is as follows: "The point for determination in this case, therefore, is which of the occupants are more suitable for transfer of this property. Muhammad Siddiq has already been transferred his portion having separate entrance, and has not claimed the entire house. None of the other occupants has contested the right of the present transferee. As between the parties in this appeal, Mst. Zainab Khatoon is in possession of a major portion and her possession is also prior to that of the appellant. The appellant is in possession since 25th January 1950, while the respondent's possession dates from 27th July 1949. Under the above circumstances, I see no reason to interfere with the order of the Assistant Settlement Commissioner." It appears that the attention of the learned Chief Justice was not drawn to the last sentence which contains the words "I see no reason to interfere with the order". These words establish that no change was effected by the order of the 13th of April 1960. It was merely an approbatory order. The fact that, the entire first floor inducing that portion which is in the possession of the petitioner, was transferred to respondent No. 6 on the 19th of November 1959 is supported by the admission of the present petitioner which she made in her revision application (which was dismissed by Mian Ghulam Shabbir himself on the 29th of August 1961), as follows:‑ But to the surprise of the appellant and by the source of magic wand, the respondent No. 2 (present respon dent No. 6) got appendix (dated 10th November 1959) and P. T. O. (dated the 19th November 1959), for the entire premises in her occupation as well as in the occupation of the appellant on 19‑11‑1959 . . . . ."

13. In the absence of any order of the 30th of September 1960 on which Mian Ghulam Shabbir relied, and in the presence of the observation of the learned Chief Justice that the amended appendix (or P. T. O. according to him) was a clarification of the earlier transfer, and in absence of any transfer by the order of the 13th of April 1960 which is mentioned by the Chief Justice as well as in the presence of the admission by the petitioner herself in the quotation reproduced above from her revision application admitting that the portion of the first floor which is in her possession was transferred to respondent No. 6 on the 19th of November 1959, I cannot see my way to coming to the conclusion that there is any error or at least such glaring error of fact in the five impugned orders as to make them to be without lawful authority and of no legal effect.

14. Lastly, I may explain the reason why I consider the description of the property given in the amended appendix dated the 30th of September 1960 to be mere clarification, as observed by the learned Chief Justice, of the description given in the original appendix dated the 10th of November 1959 and the P. T. O. dated the 19th November 1959. I reproduce the two descriptions below:‑ "H. No. E/39‑2848, Fort Area, Hyderabad, First Floor, and Ground Floor, in possession." "House No. E/39‑2848, Fort Area, Hyderabad, Portion in possession and upper portions under possession of Mst. Kaneez Fatima." A comparison of the two descriptions will show that they relate to that portion of the ground floor which was in the possession of respondent No. 6, and to the first floor which was not in her possession. In the description contained in the original Appendix and the P. T. O. reproduced above on the left side, first floor is mentioned without the words "in posses sion", and ground floor is mentioned with the words "in possession". This has been elaborated in the description contained in the amended appendix reproduced on the right side above, which makes it clear that a portion of the property which has been transferred is that which was in the possession of respondent No. 6, as well as the upper floor, a part of which was occupied by the petitioner.

15. The foregoing reasons lead me to the conclusion that there is no such error of fact in this case as to attract the application of Article 98 of the Constitution, and that the change in the description of the property on which the petitioner has relied is a mere clarification.

16. The petition is dismissed with costs. K. B. A. Petition dismissed.