1984 PLP 1627 (CLC)

‑‑Art.9--‑Constitut;onal jurisdiction‑Documents relied by petitioner whether forged or not disputed question of fact which, held, cannot be examined in constitutional proceedings.‑[Question of fact]. ‑‑S. 4‑Compensation books, scrutiny of‑Property transferred to petitioner through auction but compensation books tendered by him for adjustment of auction price not found genuine‑Mere fact that scrutiny of compensation books allegedly conducted and books allegedly found genuine, held, would not tpso facto debar Member, Board of Revenue to recover outstanding transfer price if compensation books subsequently found bogus on proper enquiry conducted by him‑Petitioner, held further, estopped to take any exception to order of fresh inquiry which would not work any injustice to him and rather would provide them full opportunity to plead their case. Muhammad Iqbal v. S. A. M. Khan, Member, Board of Revenue, West Pakistan, Lahore and 3 others P L D 1970 Lah. 640 ; Muhammad Hussain v. Muhammad Gulzar and 4 others 1976 S C M R 308 ; Qutubddin and others v. Sardar Hayatullah Khan Mokal and another 1976 S C M R 524 ; Mst. Bhano and another v. Mian A. M. Saeed and others 1969 S C M R 299 ; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others P L D 1975 S C 331 ; Mst. Chanda Begum v. Settlement Commissioner and another P L D 1977 S C 503 ; C. P. S. L. A. No. 746 of 1977 : Muhammad Shafi v. Mauj Din Khan and 3 others P L D 1976 Lah. 17 ; Syed Murid Hussain Shah v.Mufti Muhammad Yousaf Ali and another 1974 S C M R 8 ; S. Anwar Hussain Sani v. Sarfraz Ahmad and others P L D 1971 S C 669 ; Mst. Jehan Ara Begum v. Bashir Ahmad and others 1975 S C M R 401 ; Haji Faizul Haque Khan v. Syed Abdul Hamid and another 1976 S C M R 429 ; Ch. Abdul Hamid v. Mr. Muqarrab Khan, etc. W P. 830 of 1979 ; Sungreen & Co. Ltd., Karachi v. Noman Bai and 4 others P L D 1978 Kar. 100 ; Ahmad Din v. Deputy Settlement Commissioner, Lahore and another P L D 1977 Lah. 761 and Pakistan Refugees Rehabilitation Finance Corporation v. K. S. Kammu Mian Malik and 2 others 1970 S C M R 297 ref. ‑‑Art. 9‑Writ, object of‑To foster justice and not to perpetuate something patently unjust‑A writ, held, can be refused even against a void order. S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore 1978 S C M R 367 and Nawab Syed Raunaq Ali, etc. v. The Chief Settlement commissioner and others P L D 1973 S C 236 ref. Shahzad Jahangir under Court's direction. This judgment shall dispose of Writ Petitions Nos. 233‑R/82 and 251‑R/82 as they arise out of a common question of law and fact.

2. The dispute in this case relates to a portion of property No. S‑49‑R‑27, known as E Plomer Building, The Mall, Lahore. The entire property was originally disposed of in auction by the Settlement Department in consideration of Rs. 20,00,000 in favour of seven joint bidders (according to the petitioners). The case of the respondents is that it was transferred in favour of eight joint bidders. This is, however, not material for the purpose of resolving the controversy involved in these petitions. . It is an admitted fact that all the joint bidders were liable to make payment jointly and severally. A default was allegedly committed in respect of payment of three share‑holders to the extent of Rs. 6,55,

900. In consequence, the property of the defaulters was resumed by the Settlement Department. As proposed, provided' he agrees to pay in cash if any C.B. is found bogus subsequently. (Sd.) Illegible 6‑3‑1978." "Indemnity bond or a like undertaking may be obtained for com pliance with the order above. (Sd.) Secretary (Ind.) Illegible 6‑3‑1976."

4. Prior to acceptance of the offer, petitioner No. 2 Mr. S.M. Almas, entered into a deed of association, dated 30‑10‑1973, whereby he agreed to allow a share in the said property to Khalid Masood, petitioner No. 1, to the extent of Rs. 6,10,

900. I. That I am the transferee of a portion of a big mansion bearing No. S‑19‑R‑27, The Mall, Lahore. II. That I have paid the entire price of the portion; mentioned above. V. That in case any compensation book is found bogus or forged, I shall re‑pay the equivalent amount in cash and in case of failure, the Department will be authorised to recover the same from any immovable or movable properties under the Land Revenue Act". 'Subject : SHOW‑CAUSE NOTICE On direction from Martial Law Headquarters, Lahore an enquiry was conducted, as a result of which it has been found that all the Com pensation Books tendered by you (including your own for the adjustment of auction price, amounting to Rs. 6,55,900, of the potions transferred to you in E. Plomer Building, The Mall, Lahore, bearing property No. S‑19‑R‑27, have not been found to be genuine. You are, therefore, asked to show cause within 15 days why transfer of the said property from your names be not cancelled and resumed besides any other action which may be necessary, under the circumstances of the case. (Sd.) Addl. Settlement Commissioner (Ind.), Punjab, Lahore."

7. The petitioners impugned the aforesaid show‑cause notice as well as, the office memorandum, dated 22‑4‑1982, issued by the Settle ment Commissioner (Industries), Punjab. Lahore, to Mr. Muhammad Aslam Bhatti, Deputy Settlement Commissioner‑II, Farid Kot House, Lahore on the basis of which the said show‑cause notice was issued. It was stated in the memorandum, in question, in that in consequence of a direction from the Martial Law Headquarters, Lahore, an inquiry was conducted, as a result of which it has been found that compensation books tendered by the petitioners for the adjustment of auction price amounting to Rs. 6,55,900 of the property, in dispute, had been found to be ingenuine according to the report of the Officer Incharge, Record Room, Farid Kot House, Lahore, and that of the Deputy Settlement Commissioner (G) Headquarters Office, Lahore.

8. The main grievance of the petitioners is that respondent No. 1 had no jurisdiction to issue the impugned notice and take proceedings in consequence thereto. The petitioners were directed by order, dated 9‑10‑1982 to raise this question in the first instance before respondent No.

1. The petitioners, therefore, took up his objection before respondent No. 1, who held by order, dated 11‑11‑1982 that he had jurisdiction to scrutinize the authenticity and genuineness of the com pensation books tendered by the petitioners, Reliance was placed on Muhammad Iqbal v. S.A.M. Khan Member. Board of Revenue, West Pakistan Lahore and 4 others (P L D 1970 Lah. 640), Muhammad Hussain v. Muhammad Gulzar and 4 others (1976 S C M R 308), Qutab‑ud‑din and others v. Sardar Hidayat Ullah Khan Mokal and another (1976 S C M R 524), Mst. Bhano and another v. Mian A. M. Saeed and others (1969 S C M R 299), The Chief Settlement Com missioner, Lahore v. Raja Muhammad Fazil Khan and others (P L D 1975 S C 331), Mst. Chanda Begum v. Settlement Commissioner and another (P L D 1977 S C 503), and the judgment of the Supreme Court in C P S L A No. 746 of 1977, dated 3‑12‑1979, in support of the proposition that fraud vitiates even the most solemn proceedings and no party should be allowed to take advantage of his fraud and the Court had suo motu power to recall or review an order obtained from it by fraud.

9. Mr. Ishaque Muhammad Khan, learned counsel for the petition ers vehemently argued that after the issuance of the transfer orders the Settlement Department had become functus officio and even on the pretext of fraud the transfer orders cannot be interfered with and the only remedy in such cases is to invoke the jurisdiction of the Civil Court. In support of his contention reliance was placed on Muhammad Shafi v. Mauj Din Khan and 3 others (P L D 1976 Lah. 17), Syed Murid Hussain Shah v. Mufti Muhammad Yousuf Ali and another (1974 S C M R 8), S. Anwar Hussain Sani v. Sarfraz Ahmad and others (P L D 1971 S C 669). Mst. Jehan Ara Begum v. Bashir Ahmad and others (1975 S C M R 401), Haj Faizul Haq Khan v. Syed Abdul Hamid and another (1976 S C M R 429) and unreported judgment of this Court in Ch. Abdul Hamid v. Mr Muqarrab Khan, etc. (W.P. 830/79).

10. Learned counsel for the petitioners next contended that after the repeal of the Evacuee Laws the Settlement Authorities have become non‑existent and only pending cases or the cases remanded by the Supreme Court or a High Court could have been dealt with as contemp lated by section 2 (2) of the Evacuee Property and Displaced Persons (Repeal) Act (XIV of 1975). He emphasized that in the instant case no matter was pending within the ambit of section 2 of Act XVI of 1975 and therefore, respondent No. 1 had no jurisdiction, to issue the impugned notice. Reference was made to Sungreen & Co, Ltd., Karachi v. Noman Bal and 4 others (P L D 1978 Kar. 100) and Ahmad Din v. Deputy Settlement Commissioner, Lahore and another (P L D 1977 Lah. 761).

11. Mr. Ishaque Muhammad Khan further submitted that The Chief Settlement Commissioner, Lahore v. Raja Muhammad Afzal Khan and others relied upon by respondent No. 1, in his order dated 1‑11‑1982 is distinguishable, in that, it related to the period when the Settlement Authorities existed, whereas after the repeal of the Evacuee Laws it ceased to exist and, therefore, respondent No. 1 cannot take any advantage of the dictum laid down in the said authority.

12. It was next contended that the respondents have no jurisdiction to hold that the compensation books were bogus and cancel the transfer on the basis of the indemnity bonds. The precise submission was that the indemnity bonds by itself do not confer jurisdiction upon respondent No. 1 to sit as a Judge. The indemnity bond is a contract between two parties and in case of breach of any condition, the aggrieved party should go to civil Court instead of adjudicating the dispute himself. In this connection reference was made to Pakistan Refugees Rehabilitation Finance Corporation v. K. S. Kammu Mian Malik and 2 others (1970 S C M R 297). In the precedent case it was held that section 11 of the Pakistan Refugees Rehabilitation Finance Corporation Ordi nance (XV of 1948) authorises the Corporation to recover as land revenue all sums due to it but the previsions do not authorise the Corporation to unilaterally declare sums due to it from a debtor.

13. The learned counsel for the petitioners contended that transfer orders were issued after due verification as to the genuineness of the compensation books. In this connection reference was made to photostat copies of certain documents placed at pages 35, 45, 48, 50 52 and 56 of the writ petition. He further submitted that scrutiny of the compensation books was made by the competent authority in accordance with the instructions issued from time to time and, therefore, this matter cannot be re‑opened.

14. The respondents have specifically stated in their written statement/report that the documents Annexures B, B/1, B/2 and B/3, realied upon by the petitioners were forged documents. In any event. It is a disputed question of fact which cannot be examined in these proceedings.

15. Finally Mr. Ishaque Muhammad Khan, vehemently contended that after the repeal of the Evacuee Laws the work regarding documen tation, recovery of outstanding transfer price, etc. was to be made by the Board of Revenue as contemplated by section 4 of Act No. XIV of 1975, and therefore, .the Additional Commissioner (Industries) had no jurisdiction to initiate the impugned proceedings.

16. I have considered the submissions of the learned counsel for the parties and have also perused the record.

17. The indemnity bonds were admittedly executed after the repeal of Evacuee Laws and formed part of the terms and conditions of Transfer Orders issued to the petitioners, who stepped into the shoes of the original auction‑purchasers whose property was resumed. All the work regarding documentation, both for the urban and rural properties recovery of outstanding transfer price, rent or mortgage money of such property already disposed of and discharge of miscellaneous liabilities out of these recoveries, which may remain pending immediately before the repeal of the aforesaid Act and Regulations shall stand transferred to the Board of Revenue of the Province." The petitioners as such are estopped to take any exception to the inquiry proposed to be conducted by the respondents to examine the genuineness or otherwise of the compensation books tendered by them for the adjustment of the transfer, price of the property, in dispute.

19. I have considered the authorities cited at the bar, referred to above. I am clear, in my mind that the dictum laid down in these cases is not applicable to the facts of this case. The instant case is clearly distinguishable from the cases referred to above. Before the Lahore H/Court, Lahore. S. P. No. 233‑R‑1982 It is respectfully submitted for the kind consideration of this learned Court that the M.B.R. (S & R) is prepared to hold a fresh enquiry into the genuineness or otherwise of the C. B.'s in question, after giving opportunity to the petitioners to present their case and then take action as per law. (Sd.) (M.H.Akhtar) Dated : 29‑3‑1983. Secretary S &rR, BOR."

21. Mr. S. M. Almas Ali, petitioner No. 2, also made a statement before the Court that he does not press the relief claimed in the writ petition, if this Court deems fit to issue any direction in the light of the statement marked `X'. It may be observed that Civil Miscellaneous Petition No. 766/83 has also been moved by him seeking therein permission for depositing Rs. 45,000 in cash in relation to the Transfer Order issued to him. No such direction is called for in these proceedings. It is for the learned Member, Board of Revenue to consider this request and pass such order as he may deem fit in accordance with law.

22. The learned Member Board of Revenue is prepared to hold a fresh inquiry into the genuineness or otherwise of the compensation books after providing adequate opportunity of being heard to the petitioners, who should feel themselves satisfied rather than taking shelter of mere technicalities at this preliminary stage. Furthermore, in view of statement marked X', the writ petition is premature.

23. The holding of fresh inquiry by the learned Member, Board of Revenue would not work any injustice to the petitioners rather it, would provide them full opportunity to plead their case.

24. It is well‑settled that the object of writ jurisdiction is to foster justice and not to perpetuate something which would be patently unjust and a writ can be refused even against a void order Refer S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (1978 S C M R 367) and Nawab Syed Raunaq Ali, etc. v. The Chief Settlement Commissioner and others (P L D 1973 S C 236). I am, therefore, not inclined to grant the relief as prayed for in the writ petition in the exercise of my discretionary constitutional jurisdiction.

25. Be that as it may, in view of the undertaking given by the Member Board of Revenue, vide statement marked 'X', I order that a fresh inquiry be held into the genuineness or otherwise of the com pensation books after providing an adequate opportunity of being heard to the parties by the learned Member Board of Revenue (Settlement and Rehabilitation), as expeditiously as possible and not by the Additional Settlement Commissioner (Industries), Lahore and thereafter the former shall proceed in accordance with law. The petitioners in the writ petitions are directed to appear before the learned Member Board of Revenue (Settlement and Rehabilitation). Punjab, Lahore, on 6‑4‑1983. The writ petitions are disposed of accordingly. M.Y.H. Order accordingly.