P L D 1992 Supreme Court 83 (PLP)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to the transferee of a residual property which was resumed by an officer designating himself as Deputy Settlement Commissioner whose order was upheld by the Lahore High Court by its judgment dated 13‑9‑1988 and the constitution petition filed by the appellant was dismissed in limine.

2. The property in dispute is located in a thickly populated area of Lahore (Lands Bazar). It comprises about 11 marlas of land part of which is built up. A part of it was initially transferred to Ghulam Ali Butt, the father of the appellant in 1965 under Settlement Scheme No. I. It was resumed from him on his failure to pay the price in 1968. Thereafter, it was transferred to Imdad Ali in 1971 under Settlement Scheme No. VIII. He was a son of Ghulam Ali. From him also, the property was resumed in 1976. In 1978, the appellant‑ another son of Ghulam Ali, applied for its transfer. Without hearing him and without associating him with the proceedings, his application was rejected on 21‑8‑1979. He thereafter, on 19‑10‑1985, 14‑41986 and 8‑11‑1986 moved applications about his application form submitted in 1978 and its non‑disposal. The department could not locate the earlier papers with regard to it and the rejection of his application form but proceeded to deal with these applications and finding him in possession and otherwise entitled, an order of transfer was passed in his favour. He paid the entire price for it as also the arrears of rent and obtained the transfer order. 3 In this background, an application was filed under section 12(2) of the Civil Procedure Code by a stranger to the proceedings on the ground that transfer had been obtained by practising misrepresentation and fraud. The officer who was approached in the matter and who exercised jurisdiction was in fact the succeeding Deputy Administrator (Residual Properties) who had transferred the property to the appellant. He had misdescribed himself as Deputy Settlement Commissioner, an appellation which had ceased to exist after the repeal of the evacuee laws in 1974. He proceeded on the assumption that he could review the order of his predecessor and came to the following conclusion on merits:‑‑ "In view of the discussion it is established that the same property has now been transferred to another son of Ghulam Ali at a price of Rs.7,

200. The property was initially resumed in 1968 and its transfer to Imdad Ali was cancelled in 1986 and the same has now been transferred to Mahboob Ali another son of Ghulam Ali. These facts prove that the transfer order No. 414 dated 12‑2‑1987 has been obtained by misrepresentation of facts before the Court. The said transfer order is, therefore, cancelled."

4. The learned Judge in the High Court dismissed the writ petition in limine observing as hereunder:‑‑ "The finding that the petitioner managed to get the transfer of the property in his name by fraud and misrepresentation is a finding of fact. The decision of the Tribunal below on this point, rendered after examination of the record, is not open to scrutiny, through judicial review."

5. After hearing the learned counsel for the parties in the case at some length and calling for all concerned namely, the father and brother of the appellant, we find that the exact fraud or misrepresentation committed by the appellant in the matter has not been identified or disclosed. If his father was a transferee under Settlement Scheme No. I, or his brother under Settlement Scheme No. VIII, that would not be a ground for disentitling the appellant‑‑a claimant for residual property.

6. As regards the rejection of his earlier application, it had taken place without notice to him and without hearing him. In all the applications that he made subsequently, he has also pointed out that his earlier application was pending and not traceable. He only wanted his case to be adjudged on merits. At the time concerned, he was found in possession of the property. To contend that he was not in possession or that he could not be held in possession would not invest jurisdiction in a succeeding authority to proceed on the ground of misrepresentation or fraud. The jurisdiction of a succeeding officer of limited jurisdiction would be available for reopening an order passed by an officer of coordinate jurisdiction only when fraud or misrepresentation is found established as held in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 S C 331). That having not been proved, the jurisdiction was not possessed by him.

7. In the circumstances, we accept the appeal, set aside the judgment/order of the High Court and that of the so‑called Deputy Settlement Commissioner impugned in the Constitution petition and restore the transfer of the property to the appellant. No order is made as to costs. AA./M‑1582/S Appeal accepted.