1992 PLP 1991 (CLC)

Chapter 1‑‑Definitions.

1. In this Scheme, unless the context otherwise require; (a) xxxxxxxxxxxxxxx (b) xxxxxxxxxxxxxxx (c) "Available properties" means houses, shops, building sites, hotels, industrial concerns and cinema houses (whether allotted by the Industries Rehabilitation Board or not) which were available for disposal on and immediately before the first day of July, 1974 or which may thereafter become available for disposal but do not include properties attached to charitable, religious or educational trusts or institutions: (d) "Building site" means any vacant plot of land which is not within a well‑defined compound of a permanent building and includes‑‑ (i) a site on which the permanent construction if any, does not exceed in area by 1/8th of the site; (ii) any site on which any building existed but was completely demolished by floods, fire, incendiary or by any natural calamity. (e), (f), (g) & (h) xxxxxxxxxxxx (i) Possession" means possession obtained on or before the first day of January, 1976 by any person and includes his successors‑in‑interest and assignee:, Chanter No.IV‑‑Disposal of Available Properties Para. 6:(1) Subject to the provisions of this Scheme, an available house or shop of any value in possession of a person may, if he applies in this behalf, be transferred to him on transfer price or on such price as may be fixed by the Administrator (Residual Properties) of the area concerned: Provided that where a house or a shop is applied for by more than one person in possession, it may be transferred to them jointly; (2) An available building site on which a person in possession has raised a permanent construction and applies for its transfer, it may be transferred to him on the transfer price: Provided that in addition to the constructed area, only such portion of the available open space may be transferred to the applicant which may not exceed three times the constructed area. (3) Where any person having made a permanent construction on a building site does not apply for its transfer, it shall be disposed of through unrestricted public auction, alongwith the construction. The value of such construction shall be determined by the Deputy Administrator (Residual Properties) of the area concerned and paid to such a person out of the auction proceeds by such authority as may be specified.

9. A plain look at this Scheme indicates that this was issued under Act XIV of 1975 for the purpose of "Management and Disposal of Available Urban Properties." Chapter 1 has only one para which deals with the definitions of words used in this Scheme. For the purpose of resolution of controversy in "hand the words "available property" "building site" and "possession" occurring in Para 1 are of decisive significance. `Available Property' as defined in Sub para (c) of Para 1 ibid is houses, shops, building sites, hotel, Industrial concern and Cinema houses which were not allotted by the Settlement/Rehabilitation Authorities before the first day of July, 1974. This is the date when all the evacuee laws were erased from the statute book under the impact of Act XIV of 1975. The word "building site" under sub‑para (d) means a vacant plot of land which is not within a well‑defined compound of a permanent building and includes a site on which permanent construction not exceeding in area by 1/8th of the site exists or any site on which building existed but was demolished by floods, fire or by any natural calamity. The last relevant word is "possession". According to the Scheme possession means possession obtained on or before first January, 1976 by any person of any available property.

10. Para. 6 is in Chapter IV which deals with the disposal of available properties; under which two modes of disposal are prescribed. Firstly, the authorities are empowered to transfer the available property in favour of the occupants who submit an application within the period prescribed under sub para (3) of Para. II of the Scheme and establish that they are in possession o the property within the meaning of sub‑para (i) of Para. 1 of the Scheme. In case the occupant of the available property does not apply for its transfer, it shall be disposed of through unrestricted public auction, or he does not make the payment in that case also the disposal through unrestricted public auction is envisaged. It is thus clear from the aforesaid analysis that in order to seek the transfer of available property the applicants have to‑satisfy the residual authorities about their credentials noted above.

11. The words "available property" occurring in Settlement Scheme came up for consideration before the Supreme Court in Muhammad Ashraf Khan and others v. Administrator (RP) Settlement Commissioner, Lahore Division, Lahore and others (1987 SCMR 1358). In this case Muhammad Ashraf Khan appellant was occupant of a bungalow transferred to Major Muhammad Hanif, respondent No.2 as his tenant. Adjoining this bungalow was a vacant piece of land measuring 1 Kanal 18 Sft. Muhammad Ashraf Khan as well as Muhammad Hanif applied for its transfer. The Deputy Administrator (RP) transferred plot measuring 12 Marlas 78 Sft. out of this land to Muhammad Ashraf Khan against his form and the rest of the plot to Major Muhammad Hanif who had included the same in his own house. Aggrieved by this order, both of them filed revision petitions before the Administrator (RP) who concluded that none of the parties raised construction over the property in dispute prior to 1‑1‑1976, and set aside the order of the Deputy Administrator (RP) and ordered that the property be disposed of through open auction. Feeling aggrieved Muhammad Ashraf filed a Constitution petition which was dismissed in limine by the High Court on the ground that the findings of fact rendered by the Administrator (RP) were not susceptible of interference in Constitutional jurisdiction. Thereafter Muhammad Ashraf filed leave to appeal in the Supreme Court. The appeal was dismissed by the Supreme Court after the survey of the whole law. It was held that:‑ "In the Act `available property' has been qualified by the words "for disposal". In the scheme too while defining `available properties' this qualification 'has been kept intact. A property which is ordered to be publicly auctioned but the auction had not in fact been held before the repeal of the aforesaid Act" will on such a description be an available property. A mere order neither creating nor declaring, the vested right of someone else in the property will not have the effect of taking the property out of the category or description of `available' and by the force of the law such a property `shall stand transferred to the Provincial Government'. The statutory functionaries were, therefore, wrong in treating such a property as not an available property. In the Act, for agricultural land the test of entitlement is occupation of such land `continuously for four harvests'. As regards urban properties the disposal is required to be under a scheme to be prepared by the Provincial Government. The scheme defines possession and the date 1‑1‑1976 has been made decisive. In respect of building sites possession by itself is of no avail. It has to be coupled with construction raised by the person in possession. It follows, therefore that possession as on 1‑1‑1976 coupled with construction raised on the building site alone entitles one to claim its transfer under the Scheme. The departmental view is correct and the contention of the learned counsel for the appellant that the construction need not be tagged to 1‑1‑1976 is untenable."

12. Applying these principles to the facts and circumstances of the case, it is quite clear that the petitioners had nowhere in this petition claimed that they were in possession of the property on 1‑1‑1970 or before it. Also they have not stated in the petition that they have raised construction over the property on first January, 1976 or before. The case of the petitioners as set up in para‑2 of the petition is that they were jointly in possession of 4 Kanals of land. The examination of the original record indicates that five persons namely; Ch. Abdul Shakoor, Muhammad Saeed, Muhammad Rashid, Haji Umar Din and Abdul Sattar, had submitted Form No.387 on 31‑12‑1978 under the Settlement Scheme No.IX to the Deputy Administrator, Residual Authority. No entries were made with respect to the taking of possession/raising of construction over the property. These facts being conditions precedent for transfer under Scheme No.IX were intentionally omitted by the applicants/petitioners. The record further reveals that on 6‑1‑1979, one of the applicants Maulvi Abdul Shakoor applied to withdraw his name for the transfer of the `property'. This application was allowed on 6‑1‑1979. The impugned order was passed on 15‑9‑1'987 by which Umar Din, Muhammad Saeed and Abdul Sattar were transferred one Kanal each in rectangle No.125/1 Killas No.6 and 15 in Mauza Dera Izzat, Tchsil and District Bahawalpur (property in dispute). The perusal of the record further shows that on 14‑10‑1979, Muhammad Saeed and Umar Din applied for enlargement of time to deposit the price. This application was allowed. The record shows that two transfer deeds bearing Nos.1205 and 1206 were issued under the signature of the Deptuy Administrator, Residual Properties, Bahawalpur. The first conveyance deed is in favour of Haji Umar Din in respect of land measuring 2 Kanals in Mauza Bahawalpur in rectangle No.123/12 killas No.8 and 9‑B. The conveyance deed bearing No.1206 is in favour of Muhammad Saeed nd Haji Umar Din in respect of plot measuring 3 kanals in rectangle No.125/1, Killas Nos.6 and 15 in Mauza Dera Izzat Tehsil and District Bahawalpur. The petitioners seem to have kept quiet for sufficient long time and it was on 20‑4‑1987 when one Ghulam Farid, Patwari incorporated a note in Roznamcha Waqiati with respect to these conveyance deeds on the initiative of the petitioners. Last but least is Mutation No.447 attested on 20‑4‑1987. In this mutation there is a report by Muhammad Saeed Patwari stating that the petitioners have purchased the "property" from the Deputy Administrator (RP) through private negotiations and had obtained the possession. The report made by the Patwari may be produced in extenso:‑

13. Upon the examination of aforesaid narrative it is thus crystal clear that neither the petitioners laid the claim on the basis of their possession commencing from 1‑1‑1976 or prior to it nor the Deputy Administrator H Residual Property while passing the ordcr of transfer took these circumstances: into consideration. Without going deeper into the allegations of forgery regarding transfer order and conveyance deeds it is sufficient to note that the Deputy Administrator (RP) had no authority whatsoever under the Scheme to transfer the "property" to the petitioners without satisfying himself regarding the condition precedent of its being available property under sub‑papa. (c) and in possession of the petitioners within the meaning of sub‑papa (i) of Para 1 of the Settlement Scheme IX. I have, therefore, no hesitation in reaching the conclusion that the initial order of transfer was passed in flagrant violation of sub‑papa. (c) and sub‑papa (i) of Para 1 of the Settlement Scheme was, therefore, null and void. Resultantly conveyance deeds issued by respondent No.2 were a superstructure, nullity and were. therefore, void of legal sanction. I 13 have also no difficulty in concluding that the "property" was a vacant plot on which the petitioners had not raised any construction on or before 1‑1‑1976. It can, thus, be safely concluded that the `property' was a vacant plot which was not a building site and was not in the possession of the petitioners within the meaning of sub‑papas (c), (d) and (i) of Para 1 of the Settlement Scheme No.IX. Having arrived at the aforenoted conclusions I do not feel necessity to dilate upon the objection of respondents Nos.3 and 4 that the `property' was never treated its evacuee property on or before 1‑1‑1957 under section 3 of, Pakistan Administration of Evacuee Properties Act, 1957 and was, therefore, not available property under Settlement Scheme No.IX.

14. Coming to the last point, it is hardly necessary to reiterate, that the hallmark of constitutional jurisdiction is to foster justice and to right a wrong. It cannot be exercised in favour of those persons who come to Court with soiled hands in order to satisfy their greedy and covetous instincts. Reference may be made to Begum Shamas‑un‑Nisa v. Said Akbar Abbasi and another (PLD 1982 SC: 413) and Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 SC 691). The rule laid down in Begum Sham as‑ un‑Nisa's case (PLD 1982 SC 413) was reiterated in Muhammad Baran's case (PLD 1991 SC 691) in following words:‑ "It was held that even if the Chief Settlement Commissioner was not legally justified in declaring an action to be without lawful authority, the result sought to be achieved by the order of the Chief Settlement Commissioner nevertheless being just and proper and the effect of setting aside order of the Chief Settlement Commissioner, being to restore unjust orders and actions of subordinate functionaries, the High Court `ought not to have exercised its writ jurisdiction for bringing about such result since writ jurisdiction cannot be exercised in aid of injustice'. It was also held that the High Court in exercise of the writ jurisdiction is `not bound to interfere in all circumstances' even if the order of the Chief Settlement Commissioner was not lawful'. To the same 'effect in an earlier ruling of this Court in the well‑known case of Nawab Sycd Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236). In somewhat more strong phraseology, this Court had held that `an order in the nature of certioraris or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to any party, rather it causes a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked:

15. Applying these principles to the facts and circumstances of this case, it is quite clear that against the impugned order dated 19‑10‑1987 the petitioners filed suit in the Civil Court. In the aforesaid suit Mr. Muhammad Saleh Siddiqui, Advocate, was appointed to inspect the site and make report regarding the possession of the `property' in dispute. The learned Local Commissioner, in pursuance of this order, inspected the site and made the report holding that the `property' was an open plot and had no construction over it; that it was in the possession of the Municipal Corporation Bahawlpur. The operative portion of the report is as follows:‑ It is necessary to mention over here that this report was not contested by the petitioners in the suit nor before me in this petition. The petitioners seem to have withdrawn the suit and filed this constitution petition. The circumstances of filing the suit and report of the Local Commissioner were not even mentioned in this petition. Furthermore, the resume of the case shows that the transfer deeds issued in favour of the petitioners are not congruent with the transfer orders. Under the transfer orders Haji Umar Din, Muhammad Rashid and Abdul Sattar were transferred 4 Kanals in Khata in dispute in equal share; while Umar Din was transferred 2 Kanals in Mauza Bahawalpur, Tehsil Bahawalpur. The transfer deed bearing No.1206 shows that plots measuring 3 Kanals in rectangle No.125/1 Killa Nos. 6 and 15 in Mauza Dera lzzat, measuring 3 Kanals were transferred to Muhammad Saeed, while the transfer, deed bearing No.1205 relates to transfer of 2 kanals in Mauza Bahawalpur, Tehsil Bahawalpur in rectangle No.123/12, Killas Nos.8 and 9‑B in favour of Haji Umar Din. The document No.1206 relates to `property in dispute' and completely demolished the version of the petitioners. These documents leave me in no manner of doubt that the orders of transfer in favour of the petitioners are a spurious documentrs. I am, therefore, clear in my mind that the petit6ners have come to Court with unclean hands and have attempted to grab this valuable `property' being adjunct to the High Court and being used for re‑creational purposes by the Municipal Corporation, Bahawalpur.

16. In the light of foregoing analysis, this petition is found to be wholly without merit and is accordingly dismissed. The petitioner shall bear the costs of proceedings through out.

17. While parting with this case, I feel it necessary to observe that the office of Lahore High Court, Bahawalpur Bench shall despatch the record of the. case produced by respondent No.2 to him without any further loss of time. Respondent No.2 is further directed to keep this record under seal in order to save 17 from any possible manipulation or forgeries. A.A./M‑480/L Petition dismissed