2006 PLP 63 (YLR)
AMIR FAYYAZ ALI KHAN through General Attorney — Petitioner Versus MEMBER, BOARD OF REVENUE JUDICIAL-1 and 4 others — Respondents
| Citation | 2006 PLP 63 (YLR) |
| Forum / Court | Lahore |
| Bench Members | Syed Zahid Hussain, J |
| Parties | AMIR FAYYAZ ALI KHAN through General Attorney — Petitioner Versus MEMBER, BOARD OF REVENUE JUDICIAL-1 and 4 others — Respondents |
| Primary Law | Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) |
Q1: What are the key laws and sections cited in 2006 PLP 63 (YLR)?
This judgment primarily cites: Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2006 PLP 63 (YLR)?
The case was heard and decided by the Lahore bench comprising: Syed Zahid Hussain, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2006 PLP 63 (YLR) (AMIR FAYYAZ ALI KHAN through General Attorney — Petitioner Versus MEMBER, BOARD OF REVENUE JUDICIAL-1 and 4 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Ahmad Waheed Khan for Petitioner.
- Ms. Samina Yousaf and Mian Zafar Iqbal Kalanauri for Respondent No.3.
- The Deputy Settlement Commis?sioner (Urban), Punjab, Lahore to whom the inquiry had been entrusted for report, however, proceeded to pass order dated 31-5-2004 on his view that "the present application is devoid of any force and hence not maintainable. The same is accordingly dismissed". This order has been assailed on the grounds inter alia that the Deputy Settlement Commissioner had been entrusted the matter only for the inquiry to be made and report to be submitted to the learned Member, Board of Revenue/Chief Settlement Commissioner whereas the effective order was to be passed by the latter. Such an assertion made in the petition has not been `specifically controverted or denied (in particular averments made in paragraphs 11, 12, 13 and 14 of the petition and corresponding paragraphs of the parawise comments submitted by the official respondents). The learned counsel for respondent No.3 contends that since the decision on all such points had already been rendered by the High Court and by the Honourable Supreme Court of Pakistan, the matter of transfer in favour of respondent No.3 cannot be reopened.
- It is undeniable that the application made by the petitioner under section 12(2) of Code of Civil Procedure, 1908 was addressed to and moved before the learned Member, Board of Revenue/Chief Settlement Commissioner, Punjab Lahore who had as mentioned above entrusted the matter for inquiry to the Deputy Settlement Commissioner and to submit the report. This much was the order and the mandate contained in the order of the learned Member, Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and nothing beyond. Instead of, however, A submitting a report to the Member, Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore the latter proceeded to pass the impugned order and dismissed the application of the petitioner. This he could not have done and in doing so, he exceeded his authority and jurisdiction. In such circumstances, the order passed by respondent No.2 cannot be regarded as a lawful exercise of jurisdiction. The order impugned, therefore, cannot have any legal efficacy except that the same may be treated by respondent No.1 as an inquiry report. It is now for respondent No.1 to pass an effective and operative order on the application submitted by the petitioner which will be deemed pending for hearing and decision in accordance with law. Let the parties cause their presence/ representation before respondent No.1 on 5-10-2005 who will proceed to decide the application of the petitioner in accordance with law. The learned Member, Board of Revenue, Punjab will take steps for expeditious disposal of the matter preferably within one month. It is observed and clarified that there should remain no doubt that it will be open for the parties to raise all available pleas including as to the competency of proceedings before the learned Member, Board of Revenue! Chief Settlement Commissioner, and this order will not be construed as a remand order. The learned Member, Board of Revenue will dispose of the matter with open mind in accordance with law.
Headnotes / Summary
S. 2
Civil Procedure Code (V of 1908), S.12(2)
Constitution of Pakistan (1973), Art.199
Constitutional petition
Application under S.12(2), C.P.C. in the present case, was addressed to and moved before the Member, Board of Revenue/Chief Settlement Commissioner, who entrusted the matter for inquiry to the Deputy Settlement Commissioner and to submit the report
Deputy Settlement Commissioner, instead of submitting a report to the Member, Board of Revenue/Chief Settlement Commissioner, proceeded to pass order and dismissed the application of the petitioner
Deputy Settlement Commissioner could not have done so as in doing that, he had exceeded his authority and jurisdiction
Order passed by the Deputy Settlement Commissioner, in circumstances, could not be regarded as a lawful exercise of jurisdiction and said order could not have any legal efficacy except that the same might be treated by Member, Board of Revenue as an inquiry report
Member, Board of Revenue was to pass an effective and operative order on the application of the petitioner which would be deemed pending for hearing and decision according to law
Parties were directed by the High Court to cause their presence on specified date before the Member, Board of Revenue who would proceed to decide the application of the petitioner in accordance with law expeditiously preferably within one month
High Court observed and clarified that there should remain no doubt that it will be open for the parties to raise all available pleas including as to the competency of proceedings before the Member, Board of Revenue/Chief Settlement Commissioner and present order of the High Court would not be construed as a remand order and Member, Board of Revenue would dispose of the matter with open mind in accordance with law. Aish Muhammad Khan Sara for Settlement Department.
Judgment & Decree
SYED ZAHID HUSSAIN, J.
After having heard the learned counsel for the parties at a considerable length, the order that I propose to make, does not entail the statement of checkered history and background. Suffice it to state that the order passed by the Settlement Authority/ Notified Officer dated 15-8-1988 was assailed before this Court in Writ Petition No.125-R of 1988 which petition was dismissed on 1-11-1993. C.A. No.340 of 1995 arose out of that judgment which was dismissed by their Lordships of the Honourable Supreme Court of Pakistan on 8-5-2001. The review petition (C.R. P. No.285 of 2001) was thereafter filed which was dismissed on 12-1-2004. It appears that application under section 12(2) of Code of Civil Procedure, 1908 i.e. C.M. No.2392 of 2001 had also been filed by the petitioner which also came up for hearing on the same date i.e. 12-1-2004 and was dismissed as withdrawn in view of the statement made by the learned counsel for the petitioner. As a sequel to the last order, the petitioner filed an application under section 12(2) of Code of Civil Procedure, 1908 read with section 2(2) of Act XIV of 1975 and all other enabling provisions before the Member, Board of Revenue Judicial-1/Chief Settlement Commissioner, Punjab, Lahore. The said application was processed and the Secretary (Settlement and Rehabilitation) put up a note before the learned Member, Board of Revenue/Chief Settlement Commissioner, Punjab, dated 26-1-2004 indicating that the Chief Settlement Commissioner may entrust the inquiry to Deputy Settlement Commissioner (S&R) who may submit a report within one month. On 29-1-2004 learned Member, Board of Revenue, passed the following order:-- "Case entrusted to Deputy Settlement Commissioner (S and R) for detailed enquiry and report." The Deputy Settlement Commis?sioner (Urban), Punjab, Lahore to whom the inquiry had been entrusted for report, however, proceeded to pass order dated 31-5-2004 on his view that "the present application is devoid of any force and hence not maintainable. The same is accordingly dismissed". This order has been assailed on the grounds inter alia that the Deputy Settlement Commissioner had been entrusted the matter only for the inquiry to be made and report to be submitted to the learned Member, Board of Revenue/Chief Settlement Commissioner whereas the effective order was to be passed by the latter. Such an assertion made in the petition has not been `specifically controverted or denied (in particular averments made in paragraphs 11, 12, 13 and 14 of the petition and corresponding paragraphs of the parawise comments submitted by the official respondents). The learned counsel for respondent No.3 contends that since the decision on all such points had already been rendered by the High Court and by the Honourable Supreme Court of Pakistan, the matter of transfer in favour of respondent No.3 cannot be reopened. It is undeniable that the application made by the petitioner under section 12(2) of Code of Civil Procedure, 1908 was addressed to and moved before the learned Member, Board of Revenue/Chief Settlement Commissioner, Punjab Lahore who had as mentioned above entrusted the matter for inquiry to the Deputy Settlement Commissioner and to submit the report. This much was the order and the mandate contained in the order of the learned Member, Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and nothing beyond. Instead of, however, A submitting a report to the Member, Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore the latter proceeded to pass the impugned order and dismissed the application of the petitioner. This he could not have done and in doing so, he exceeded his authority and jurisdiction. In such circumstances, the order passed by respondent No.2 cannot be regarded as a lawful exercise of jurisdiction. The order impugned, therefore, cannot have any legal efficacy except that the same may be treated by respondent No.1 as an inquiry report. It is now for respondent No.1 to pass an effective and operative order on the application submitted by the petitioner which will be deemed pending for hearing and decision in accordance with law. Let the parties cause their presence/ representation before respondent No.1 on 5-10-2005 who will proceed to decide the application of the petitioner in accordance with law. The learned Member, Board of Revenue, Punjab will take steps for expeditious disposal of the matter preferably within one month. It is observed and clarified that there should remain no doubt that it will be open for the parties to raise all available pleas including as to the competency of proceedings before the learned Member, Board of Revenue! Chief Settlement Commissioner, and this order will not be construed as a remand order. The learned Member, Board of Revenue will dispose of the matter with open mind in accordance with law. The petition is disposed of accordingly with the above observations. M.B.A. /A-600/L???????????????????????????????????????????????????????????????????????????????? Order accordingly.