1985 PLP 369 (CLC)

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was filed to seek the quashment of an order dated 13-10-1979 passed in revision by the Administrator, Residual Properties, Multan Division, respondent No.1 whereby he set aside the order of the Deputy Administrator, Residual Properties, Multan, dated 5-3-1979 and remanded the case to him for fresh decision.

2. Facts of the case, briefly stated, are that the petitioner applied for transfer of what he described as 'building site' bearing old Khasra No.1765/493 min (present Khasra No.144) Mauza Qutabpur, Ward No.8-Mulsim, Multan, measuring 6 Marlas, hereinafter described as area in dispute, under Settlement Scheme No.IX. Settlement Inspector, after spot inspection, submitted a report dated 1-2-1979 stating that the petitioner was in possession of the area in dispute and that according to Jamabandi produced by him, area of Khasra No. in question was 19 Marlas, out of which 2/3rd was owned by Muslim and the remaining 1/3rd by non-Muslim evacuee. Petitioner also produced a report from Patwari which was also to the same effect and this report was also endorsed by Kanoongo and Tehsildar. In view of these reports, Deputy Administrator by order dated 5-3-1979 transferred the area in dispute to the petitioner under Settlement Scheme No.IX.

3. Respondent No.2 who claimed himself to be the owner of the area in dispute filed a revision petition challenging the aforesaid order of the Deputy Administrator on the ground, inter alia, that he had constructed a house on the area in dispute and rented it out to the petitioner and that when he initiated ejectment proceedings against the petitioner, the latter, with a view to save himself from the ejectment, got the area in dispute transferred in his name under Settlement Scheme No.IX. As against this, case of the petitioner before the revisional authority was that Khasra No. in dispute measured 19 Marlas out of which 1/3rd was owned by non-Muslim and 2/3rd by Muslim and that after the partition of the sub-continent, share of the non-Muslim became evacuee property which was in his occupation and was rightly transferred to him under Settlement Scheme No. IX. Petitioner also took an objection that the revision petition was barred by time and P.T.D. having been issued in his favour, the matter could not be re-opened. Administrator, Residual Properties, Multan took note of various contentions of the parties and came to the conclusion that the basic issue in this case was whether the suit property was evacuee or not. He repelled peti tioner's contention that the matter could not be re-opened after the issuance of P.T.D. with the obseryation that it is doubtful if the area in dispute was available or not. Learned Administrator, therefore, accepted the revision petition of respondent No.2 and remanded the case to the Deputy Administrator, Residual Properties for fresh decision.

4. Learned counsel for the petitioner has raised the following contentions:- (i) That the revision petition filed by respondent No.2 was manifestly time-barred but the Administrator accepted the same without deciding the question of limitation which was specifically raised by the petitioner. Reliance is placed on Azmat Ali v. Chief Settlement and Rehabilitation Commissioner P L D 1964 S C 260, Tufail Mohammad v. Muhamad Zia Ullah Khan P L D 1965 S C 269, Ahsan All v. District Judge P L D 1969 S C 167 and Haider Ali v. Akbar All P L D 1973 Lah. 546. (ii) That after the issuance of P.T.D. in favour of the petitioner, Settlement Authorities had become functus officio and as such the learned Administrator had no jurisdiction to re-open the matter in revision. (iii) That the evacuee character of the area in dispute was established from the record and as such remand for the purpose of determining the status of property was wholly uncalled for.

5. Learned counsel for respondent No.2 in reply has made the following submissions:- (i) That the impugned order of the Deputy Administrator transferring the area in dispute to the petitioner was passed at the back of respondent No.2 and without notice to him and as such limitation did not run against him. He has further submitted in this context that the land in dispute belonged to respondent No.2 and was not an evacuee property and was, therefore, not available for transfer and that being so order of the Deputy Administrator transferring it to the petitioner was complete nullity. For this reason also, question of limitation did not arise. Learned counsel further submitted that the petitioner while making statement before the Rent Controller on 17-6-1979 disclosed for the first time that the transfer order has been issued in his favour. Respondent No.2 thereafter obtained necessary copies and filed revision petition without any further loss of time. (ii) Petitioner's contention that after the issuance of P.T.D., Settlement Authorities had no jurisdiction to re-open the matter is without any substance. Area in dispute was transferred to the petitioner under Scheme No.IX framed for the Management and Disposal of available Urban Properties, Para. 31 of which made a provision for a revision against the order of the Deputy Administrator. Thus, the Scheme under which the Deputy Administrator passed the order transferring the area in dispute to the petitioner itself made this order subject to revision by the Administrator. Issuance of P.T.D., therefore, did not affect his revision jurisdiction in exercise of which he could determine the validity of the basic order passed by the Deputy Adminis trator. (iii) There were conflicting reports about the status of the property. Report of the Revenue Patwari relied upon by the Deputy Administrator showed that the area in dispute represented non-Muslim share in the Khasra in question whereas material was placed before the Administrator to show that the Tehsildar, Multan, conducted an enquiry as a result of which he came to the conclusion that the property in dispute was not evacuee but was owned by Muslim and was not available for transfer under Settlement Scheme No.IX. In these circumstances, Administrator rightly remanded the case for decision of the basic question as to whether the area in dispute was evacuee property or not. (iv) That the impugned order of remand directing fresh decision about the status of the property in dispute after hearing both the parties was highly just and proper and caused no prejudice to the petitioner. Petitioner cannot, therefor, be said to have suffered any grievance on account of the remand order.

6. As regards the first contention raised by the learned counsel for the petitioner, there is no doubt that the revision petition was filed by respondent No.2 after the expiry of limitation period prescribed, therefor, and the learned Administrator, Residual Properties, respondent No.2 accepted the revision petition without giving any specific decision on the question of limitation raised before him. Impugned order, however, shows that the learned Administrator was quite conscious of the question of limitation and in fact, he took note of the objection raised in this behalf and yet he proceeded to deal with the revision petition on merits and remanded the case to the Deputy Administrator for fresh decision of the crucial issue viz. whether or not the property in dispute was evacuee and available for transfer. In these circumstances, learned Administrator can be taken to have impliedly condoned the delay. Even otherwise, question of limitation was relatable to the question of the evacuee or no-evacuee nature of the property in dispute for the determination of which the case was remanded by the Administrator. If the property in dispute is ultimately found to be non-evacuee, it was quite evidently not available for transfer to the petitioner and in that event, order of the Deputy Administrator challenged in the revision petition before the Administrator would be coram non judice and consequently question of limitation would not arise. In this view of the matter, precedents relied upon by the learned counsel for the petitioner are of no avail to him. Moreover, I find that in the cases relied upon by the petitioner, the Settlement Authorities were not even conscious that any question of limitation arose in the matters before them. In the instant case, the learned Administrator as shown above was quite conscious of the question of limitation and he remanded the case forA fresh decision of what he described as 'basic fact in issue' viz, whether or not the area in dispute was evacuee and available for transfer. This disposal, in my opinion, indicates that the learned Administrator impliedly condoned the delay. Judgments relied upon by the petitioner, therefore, are not strictly applicable to the present case. Even otherwise, order o the Deputy Administrator transferring the area in dispute to the petitioner having admittedly been passed in the absence of the respondent B No.2 and without notice to him, question of limitation did not arise. Resultantly, order of the learned Administrator disposing of the revision petition on merits does not suffer from any legal infirmity by reason o the delay not having been expressly condoned.

7. As regards the remaining contentions of the learned counsel for the petitioner, I find no force in them and the same have been effectively met by the learned counsel for the contesting respondents by making the submission mentioned hereinabove. Basic order of the Deputy Administrator was revisable under para.31 of the relevant Scheme. Issuance of P.T.D, was, therefore, no bar to the exercise of the revisional jurisdiction by the learned Administrator. Similarly, in view of conflicting reports about the status/nature of the area in dispute referred to in the impugned order, learned Administrator rightly remanded the case for .decision of the basic question as to whether the area in dispute was evacuee property or not. In these circumstances, learned Administrator committed no illegality in remanding the case to the Deputy Administrator for fresh decision regarding the character of the area in dispute. In fact, order of remand was highly just and proper in the circumstances of the case as the basic question would be determined afresh after hearing both the parties. Petitioner cannot, therefore, make any legitimate grievance against the impugned order of remand. It was held in Raunaq All etc. v. Chief Settlement Commissioner and others P L D 1973 S C 234 that "an order in the nature of a writ of certiorari 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 the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked". Respectfully following they aforementioned principle, I hold that the petitioner is not entitled to invoke the discretionary powers of this Court in exercise of its constitu tional jurisdiction. In view of what has been held above, this has no merit and the same is dismissed with no order as to cost in the circumstances of the case. M.B.A. Petition dismissed.