1986 PLP 1235 (MLD)

HAIDER ALI PIRZADA, J.‑‑This Constitutional Petition is directed against the order, dated 1‑12‑1977 passed by the respondent whereby directing the petitioner for further payment of Rs. 10,000 to the respondent No.

2. The facts giving rise to this petition are that Plot No. 135, measuring 1,000 square yards or thereabout, situated on 11th Street, Phase VI, Pakistan Defence Officers Housing Society Limited, Karachi, was allotted to Major Wajih A. Chowdhry. The petitioner purchased the said plot in the name of his friend, Commander Inayatullah Choudhry of Pakistan Navy as the petitioner could not acquire the same without becoming a member of the Defence Housing Society. He purchased the said plot for a consideration of Rs. 12,

500. The seller duly intimated the Society about the transfer on 17‑2‑1973 and submitted an affidavit requesting the Society to transfer the said plot to Commander Xnayatullah Chowdhry and the Society transferred the said plot to Commander Inayatullah Choudhry, vide letter, dated 26‑2‑1973. In the meantime he became an Associate Member of the Society and had the plot transferred in his own name, vide Society's letter, dated 15‑12‑1974. On coming into operation of the Abandoned Property (Taking Over and Management) Act, 1975 (hereinafter called the said Act) the petitioner moved an application under section 13 of the said Act before the respondent No.2 praying therein that the transfer of the said plot be confirmed. The respondent No.2 rejected the application on the sole ground that the petitioner failed to prove that he had actually paid the sum of Rs. 12, 500 as sole price of the said plot to 'Specified person', vide order, dated 19‑4 1977. This was by an order, dated 19‑4‑1977. The petitioner went in appeal under section 15 of the said Act before the respondent No.1. The respondent No.1 took the view that the payment to the 'specified person' established and held that the payment of Rs. 12,500 as proved. The respondent No.1 accepted the appeal subject to a further payment of Rs. 10,000 to the respondent NoA. The petitioner being aggrieved against the order, dated 1‑12‑1977 thus preferred this petition on the grounds mentioned in the memo of petition. Mr. Iqbal Ahmed, the learned counsel for the petitioner has contended that the respondent No.1 failed to give any reason for imposing the condition to make further payment and without reason the impugned direction for further payment is not sustainable. On the other hand Mr. Syed M. Shahoodul Haque, the learned Standing Counsel has submitted that the order of the respondent No.1 is in accord with law and the petitioner is incompetent and that the finding of fact recorded by the respondent No.1 was not liable to be interfered with in exercise of constitutional jurisdiction. Reverting to the submission of the learned Standing Counsel that the petition is incompetent and that the finding of fact recorded by the respondent No.1 was not liable to be interfered with in exercise of constitutional jurisdiction. The Hon'ble Supreme Court observed as follows in Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139. "It is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong:. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full‑fledged appeal, which plainly is not the intention of the constitution‑makers." We may add here that in the above case it was also observed by the learned Judges of the Supreme Court that supervisory jurisdiction of High Court under Article 98 of 1962 Constitution or under Article 199 of Constitution of 1973 is assimilable to its jurisdiction under section 115, Code of Civil Procedure except in two respects; First, the former jurisdiction being a creation of the constitution stands in a higher pedestal than that under section 115, Code of Civil Procedure, which is confined to subordinate Courts. Second, the former jurisdiction has a wider reach than the jurisdiction under section 115 which is confined to subordinate Courts. But the aforesaid Constitutional jurisdiction is not designed to empower High Court to interfere with the decision of Court or a tribunal of inferior jurisdiction merely because in its opinion the decision is wrong as in that case High Court's constitutional jurisdiction will no longer remain distinguishable from the jurisdiction exercise-able in .a full‑fledged appeal. However, at the same time it is also well‑established that the supervisory jurisdiction extends only t see that the inferior tribunal acts within jurisdiction and observe law. In Rahim Shah v. Chief Election Commissioner P L D 1973 S C 24 it was observed that the scope of interference in the High Court is limited to the inquiry whether the tribunal has been doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. We are of the opinion that cases of no evidence had faith, ‑misdirection or failure to following judicial procedure are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal on this ground we may add that where an inferior tribunal has failed to determine the question in its true perspective or in other words has failed to consider all the material facts and circumstances established on record while determining the question of law and fact arising before it, the resultant order would stand vitiated. Keeping the above‑stated principles in view, we find that the respondent No.1 reversed the finding on the question of payment of Rs. 12,500 to specified person but imposed a condition on the basis of assumption and conjectures. It would, therefore, be seen that the evidence on record was not gone into by the respondent No.1. It was incumbent upon the respondent No.1 to go into adequacy of consideration in view of provisions of section 13 of the Act. It is advantageous to reproduce section 13(1) and (3) of the said Act which reads as under:‑ "Confirmation of transfer by specified persons (1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the sixteenth day of December, 1971, by or on behalf of a specified person shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Administrator." (3) The Administrator shall hold a summary inquiry into the application in the prescribed manner and may reject the application if he is of opinion that the creation or transfer‑‑ (i) was not or has been entered into in good faith or for adequate consideration; or (ii) ought for any other reason not to be confirmed." It may be noticed that the Act was promulgated on 17th February 1975. A bare reading of section 13(1) shows that no creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the sixteenth day of December, 1971 by or on behalf of a specified person shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless, it is confirmed by the Administrator. Subsection (3) provides that the Administrator shall hold a summary inquiry into the application in the prescribed manner and may reject the application if he is of opinion that the creation or transfer was not or has been entered into good faith or for adequate consideration; or ought for any other reason not to be confirmed. The reason given by the respondent No.2 for not confirming the transfer was that it was without any lawful consideration. The respondent No.1 observed in its order "that on consideration of the material facts we are satisfied that the payment to the specified person has been established. Even otherwise, no cogent reason has been advanced to disbelieve the documents executed by responsible senior officers of the Defence Forces. In view thereof we hold that the payment of Rs.12,500 as proved." The respondent No.1 accepted the fact that the transfer to favour of the petitioner was bona fide. The observation that "but at the same time we are not satisfied about its being adequate consideration for a plot of 1,000 square yards" is not justified. It is not based on any legal evidence. The respondent No.1 failed to determine the appeal Piled by the petitioner in accordance with the aforesaid provision and the evidence adduced by the petitioner on accord. The disposal of the appeal on the basis of conjectures was, therefore, not legal. The petitioner has made out a case for confirmation under section 13 and the impugned condition "subject a further payment of Rs. 10,000" cannot be sustained in law and the same is declared to have been passed without any lawful authority and is of no legal effect and the same is quashed. The impugned order was quashed by a short order dated 4‑2‑198 and the above are the reasons for the same. The petition accordingly succeeds and the impugned condition imposed by the respondent No.1 is declared as without lawful authority and of no legal effect but in the circumstances there will be no order as to costs. A.A. Petition accepted.