P L D 1982 Karachi 273 (PLP)

NASIR, A. ZAHID, J.‑By our short order dated 14‑12‑1981, we had allowed this constitutional petition and set aside the impugned order dated 19‑8‑1980 of the learned Special Judge, Anti‑Corruption & Election Tribunal, Karachi in Election Petition No. 373/79 acrd had further ordered that the said Election Petition filed by the petitioner shall be deemed to be pending before the Provincial Election Authority who shall decide the question of maintainability first with reference to rules 66 and 67 of the Sind Local Council (Elections) Rules, 1979 in accordance with law before referring the same to the Election Tribunal under rule 68(2) of the said Rules. The reasons for our aforesaid short order dated 14‑12‑1981 are recorded in this judgment.

2. Briefly the facts are that 18 candidates including the petitioner, Muhammad Saeed Khan; and respondent No. 7, Muhammad Zakir Qureshi, contested the election from U. C. No. 116, Malir Colony, Karachi (K. M. C. No. 140). Respondent No. 7 polled 1892' votes and 1026 votes were cast in favour of the petitioner in the election for the said seat which was held on 25‑9‑1979 and the official result of the election was announced on 28‑9‑1979 in favour of respondent No. 7, who had polled the highest number of votes. On 29‑10‑1979, the petitioner filed Election Petition No. 373/79 before the Provincial Election Authority, which referred the petition for decision to the Election Tribunal after admitting the same. By the impugned order dated 19‑8‑1980 the Election Tribunal dismissed the election petition oil the following preliminary objections :‑‑ (a) Annexures and Schedules to the Election Petition were not signed and verified according to C. P. C. ; (b) the petitioner did not supply copies of the Election Petition to the parties through registered post ; and (c) the allegations in the Election Petition were vague and general in nature 3. ' It may be noticed that these preliminary objections, on account of which the Election Petition filed by the petitioner was dismissed by the Election Tribunal, related to compliance of the provisions contained in rules 66 and 67 of the 1979 Rules. On behalf of the petitioner Mr. S. S. Hamid, learned counsel for the petitioner, submitted that on filing of the Election Petition, the same had undergone scrutiny by the Provincial Election Authority under rule 68(1) and thereafter the petition was referred for decision to the Election Tribunal. It was then urged by learned counsel that the Election Tribunal was not competent to dismiss the Election Petition for non compliance of rules 66 and 67 which jurisdiction was vested in the Provincial Election Authority, and the Authority after admitting the same and having referred the Election Petition to the Election Tribunal, is deemed to have dismissed the aforesaid preliminary objections regarding the maintainability of the Election Petition. On merits; it was the case on behalf of the petitioner that the Election Petition itself was duly signed and .verified according to the provisions of the C. P. C. and there was sufficient compliance of rule 67(3). As regards the supply of copies of the Election Petition, it was submitted that copies had in fact been supplied and respondent No. 7, the contesting party to the Election Petition, had even filed his Written Statement dealing with the allegations contained in the Election Petition on merits and no objection was raised by respondent No. 7 as regards non compliance relating to supply of copies of the petition. With reference to the allegations being vague and general in nature in the Election Petition, learned‑ counsel' for the petitioner had submitted that details as required by law were given in the Election Petition.

4. We may here refer to four judgments pronounced. recently which are relevant to the points raised in this petition. Three judgments are of this Court and the fourth is of the Supreme Court of Pakistan: (i) First is the judgment dated 15‑3‑1981 of a Division Bench of this Court in Constitutional Petition No. 594/80, whereby it was held that the Election Tribunal could not dismiss the election petition on preliminary objection without recording of evidence and in the circumstances the order of the Election Tribunal in that case was set aside and the matter was remanded back to the Election Tribunal. Last paragraph of the judgment in that case is as follows :‑ "However, the learned Tribunal shall first dispose of the preliminary objection on merits and thereafter, if necessary, shall proceed to decide all the issues including two so‑called preliminary issues after granting opportunity to both the sides to adduce evidence and after hearing both of them." (ii) The aforesaid judgment of this Court in Constitutional Petition No. 594/80 was challenged in the Supreme Court of Pakistan and by their judgment dated 11‑4‑1981 passed in Civil Appeal No. 72/81, the Supreme Court accepted the contention that it was not open to the Election Tribunal to go into the question of maintainability of the election petition as that objection had to be considered. and decided by the, Election Authority. .As a result, the Supreme Court set aside the order of the High Court in Constitutional Petition No. 594/80 to the extent it related to the remand of the case on the question of maintainability of the election petition, but as regards the rest of the judgment remanding the case to the Election Tribunal for decision on merits, the same was upheld. (iii) The third judgment is of a Division Bench of this Court dated 21‑9‑1981 passed in Constitutional Petition No. D‑113/81. In that case, after the election petition was referred by Provincial Election Authority to the Election Tribunal for trial, the declared winning candidate who was a respondent in the election petition raised the objection that the election petition was not maintainable on the following grounds :‑ ' (a) That the provisions of rule 66 were not complied with inasmuch as other contesting candidates were not joined in the election petition as respondents ; and (b) the election petition as well as the Schedules annexed thereto were not verified under rule

67. To meet the aforesaid objections, the petitioner in that case filed an applica tion under Order I, rule 10, C. P. C. before the Election Tribunal praying for permission to join the remaining candidates as respondents to the election petition and to sign the memorandum of the petition, although, according to the said application, the annexures to the election petition were already signed by the petitioner. The Election Tribunal dismissed .the election petition holding the same to be not maintainable due to non‑compliance with the mandatory provisions of rules 66 and

67. This order was challenged in the aforesaid Constitutional Petition No. 113/81‑. Relying upon the dictum of the Supreme Court in the judgment dated I1‑4‑1981 in Civil Appeal No. 72/81, referred to hereinabove, a Division Bench of this Court declared the order of the Election Tribunal to have. been passed without lawful authority and of no legal effect. It was further observed in the last paragraph of the judgment dated 21‑9‑1981 as follows :‑‑ "Since the application under Order I, rule 10, C. P. C. was not considered at all, it will be open to the Election Tribunal to consider and decide the same if pressed. The Election Tribunal is now therefore, directed to dispose of the petition on merits after giving the parties opportunity of heating." (iv) The latest judgment is of a Division Bench of this Court dated 16‑11‑1981 passed in Constitutional Petition No. D‑962/81. In this case a contention was raised, in view of the aforesaid judgment of the Supreme Court sin Civil Appeal No. 72/81, that the only authority competent to decide the question of maintainability of the petition is the Provincial Election Authority and, therefore, the election . petition which was pending before the Election Tribunal could not proceed further until and unless the question of maintainability of the election petition was decided by the Election Authority first. From the opposite side, however, the contention was raised that the Election Authority having forwarded the election petition to the Election Tribunal, it should be presumed that the question of maintainability of the election petition had been considered and decided in the affirmative by the Election Authority. The Division Beach by its judgment dated 16‑11‑198.1, after referring to the aforesaid judgment of the Supreme Court, held that all questions relating to the maintainability of the election petition are to be dealt with and decided by the Provincial Election Authority before forwarding a petition to the Election Tribunal under rule 68(2) of the 1979 Rules. It was then observed as follows :‑‑ "We have gone through the order dated 8‑10‑1979 and find that respondent No. 1 (Election Authority) while forwarding petition No. 29/79 to respondent No. 3 (Election Tribunal) for decision according to law did not consider the question of compliance of rules 66 and 67 of the Rules. The contentions noted in the order dated 10‑9‑1979 of respondent No. 1, related to the merits of the case alone. We accordingly quash the order dated 8‑10‑1979 passed by respondent No. 1 and declare it to be without lawful authority. ?The result is that Election Petition No. 29/79 shall, be deemed to be pending before respondent No. 1 who shall decide the question of main tainability first with reference to rules 66 and 67 of the Rules in accordance with law before referring the same to respondent No. 3 (Election Tribunal) under rule 68(2) of the Rules."

5. In the instant case, R. & P. of the case had been requisitioned, and we have seen the order admitting Election Petition No. 373/79 and ‑forwarding the same to the Election Tribunal passed by the Chairman, Provincial Election Authority on 30‑10‑1979. The order dated 30‑10‑1979 is as follows :‑ "(1) Admit. Notice. (2) The petition is forwarded under rule 63(2) of the Sind Local Council (Elections) Rules, tar Special. Judge, Anti‑Corruption, Karachi who is appointed Tribunal for the purpose under rule 69 of the said Rules. To be heard alongwith Petition No. 142.x" From a perusal of the above order dated 30‑10‑1979 of the Chairman, Provincial Election Authority, it is obvious that while forwarding the instant Election Petition to the Tribunal for decision, the Election Authority did not consider the question of compliance of rules 65 and 67 of the 1979 Rules In the circumstances, we set aside" the order dated 19‑8‑1980 of the Election Tribunal in the instant case as the Election Tribunal dismissed the Election Petition on the question of maintainability for non‑compliance of rules 66 and

67. Respectfully following the view of the Supreme Court of Pakistan in Civil Appeal No. 72/81 and taking the view as has been taken by this Court in Const. Petitions Nos. D‑113 of 81 and D‑962/81, we further hold that the question of maintainability of the election petition for non compliance of rules 66 and 67 can only be decided by the Provincial Election Authority. As the question of maintainability has not been considered a all by the Provincial Election Authority, we also set aside the order date 30‑10‑1979 of the Provincial Election Authority and declare that Election Petition No. 373/79 filed by the petitioner shall be deemed to be pending before the Provincial Election Authority, who shall first decide the question of maintainability of the said Election Petition with reference to rules 66 and 67 of the Rules in accordance with law before referring the same to the Election Tribunal under rule 68(2) of the Rules. We further direct that a the decision relating to maintainability of the Election Petition is likely t effect the right of the petitioner and respondent No. 7, the elected candidate, before taking a decision in this regard, the Provincial Election Authority shall issue notice to the petitioner and respondent No. 7 and grant a hearing to them. There will be no order as to costs. s. A. H.Petition accepted. P L D 1982 Karachi 276 Before G. M. Korejo, J SANYAL SHAH‑Petitioner versus ASGHAR ALI AND OTHERS‑Respondents Constitutional Petition No. 373 of 1974, decided on Ist November, 1981. Displaced Persons (Compensation and Rehabilitation) Act (XXVIll of 1958)‑ ‑‑ S. 20(3)(4)‑Correction of Permanent Transfer Deed‑Permanent Transfer Deed once issued, Settlement Authorities, held, became functus officio unless fraud or misrepresentation alleged‑Altering or modifying area of survey numbers in question resulting in substantial variation in description of properties transferred in consequence of Permanent Transfer Deeds already issued in favour of transferees, contention as to variation in area of survey numbers transferred in favour of petitioners having to result only in a formal classification and not substantial modification in description of properties given in Permanent Transfer Deeds, held, not correct in circumstances. [p. 279]A & B Muhammad Shafi Rajput for Petitioner. Akhtar Mahmood for Respondent No.

1. Date of hearing 11th August, 1981. JUDGMENT This petition impugns the orders passed by the Additional:‑ Settlement Commissioner, Hyderabad, and Settlement and Rehabilitation Commissioner, Karachi, dated 10‑11‑1972 and 30‑6‑1973 respectively, as being illegal and without lawful authority.

2. Briefly the facts leading up to this petition are that the petitioner Sanyal Shah who is now represented by his legal representatives was trans ferred House No. B/262 corresponding to No. B/944 in new Hala Town, District Hyderabad, by permanent transfer deed dated 12‑3‑1970. One Muhammad Ahsan was also transferred House No B/263 corresponding to B/943, situated adjoining to the above‑mentioned house of the petitioner by a Permanent Transfer Deed. He subsequently, transferred it to one Atta Muhammad son of Rustam Khan by a registered Sale Deed dated 18‑6‑1965 and the name of Atta Muhammad was mutated in the City Survey Record. The said Atta Muhammad sold the same to the petitioner vide Registered Sale Deed dated 7‑I1‑1970 and the name of the petitions; was mutated against it in the City Survey Record. Consequently, the two City Survey Nos. 943 and 944 stood permanently and exclusively transferred and conveyed in favour of the petitioner. Subsequently, respondent No. 1 Asghar Ali moved an appli cation before the Deputy Settlement Commissioner that he was transferee of City Survey No. B/261 which corresponded to portions of City Survey Nos. 943 and 944 and claimed an area in all 65.1 sq. yds., being in possession of it, from the two survey numbers. The Deputy Settlement Commissioner dismissed his application on the ground that after the issuance of P. T. Ds. he had no jurisdiction in the matter. An appeal was filed by the respon dent No. I against the order before Additional Settlement Commissioner which was allowed by the order dated 10‑11‑1972. A revision against the order was preferred before the Settlement Commissioner who dismissed the same. The petitioner being aggrieved by the two orders passed by the Additional Settlement Commissioner and the Settlement Commissioner has come in this Constitutional petition.

3. Mr. Muhammad Shafi Rajput, the learned counsel for the petitioner, has urged at the very outset that after the issuance of the P. T. Ds. the Settlement authorities had become functous officios and they could not set aside the same by invoking the powers under section .',0(3x41 of the Displaced Persons) (Compensation and Rehabilitation) Act, 1958, particularly when rules 6 and 7 of the Permanent Transfer Rules have been deleted and there was no allegations of any fraud or misrepresentation. He has also urged that it is not a case of an error such as can be corrected without holding a formal enquiry or undertaking adverse proceedings but conflicting claims made by the parties require a full‑fledged adjudication consequent upon which substantial variation may be made in the description of the properties given in the P. T. Ds. already issued to the transferees, which cannot be done, unless it is a case of misrepresentation or fraud.

4. The facts of the case as stated above have not been controverted on behalf of the respondents as no counter-afiidavit appears to have been filed. It has also been fairly conceded that it is not a case of the respondents that there was any fraud or misrepresentation in the matter of transfer of the property. The controversy, therefore, centres around the question as to whether the Settlement Authorities could alter or amend the P. T. D. by altering tale area of the properties which were transferred by the P. T. Ds. Reliance in that respect has been placed on behalf of the petitioner on the cases of S. Anwar San! v. Sarfraz Ahmed and 2 others (1) and Mst. Hajiani Fatima and 6 others v. Ibrahim and 13 others (2). In the former case the following observations have been relied on at page 673 of the report ; "There can be no dispute with the general principle that after title has passed on to the person in whose favour a P. T. D. has been issued the Settlement Authorities become functus officio to deal with that property. Transfers under the Displaced Persons (Compensation and Rehabilitation) Act, are, however, in the nature of a grant and it .is open to the granter to impose such terms and conditions on the ownership rights as the law may provide. The relevant provisions of law in the instant case are contained in the Permanent Transfer Rules, 1961, framed by the Central Government in exercise of the power conferred on it by section 35 of the Displaced Persons (Compensation and Rehabilitation) Act, XXVIII of 1958." In the latter case it has been observed as follows :‑.‑ 'There is no escape from the conclusion that once a final transfer deed is issued, the Settlement Commissioner becomes functus officio. This is apparent from the observations of their Lordships of the Supreme Court cited above. It, therefore, follows that it is only under the rules that the power can be invoked to set aside the transfer on the grounds mentioned in it. This being the legal position section 20(3) of the Act loses its efficacy and cannot be invoked to set aside the transfer. Mr. Ajmal Mian invited my attention to the fact that rules 6 and 7 of the Permanent Transfer Rules did not exist on the date the Settlement Commissioner passed the impugned order as they were deleted and therefore even under the Permanent Transfer Rules the power to .set aside the transfer did. not exist, muchless the power under section 20(3) of the Act. This contention has force, for the Permanent Transfer Rules provided the foundation for the exercise of that power and in the absence of the relevant provisions, that power could not be exercised. The principle enunciated in Ahmed Abbas 2;aidi (ibid) cannot prevail against the view taken by the Supreme Court in Syed Anwar Hussain Sani (ibid) as under Article 63 of the Constitution it is the law laid down by the Supreme Court which prevails." (1) P L D 1971 S C 669 (2) P L D 1972 Kar.‑610 The authorities above‑mentioned lay down a very clear proposition that, once a P. T. D. is issued the Settlement Authorities becomes functus ofclo; unless fraud or misrepresentation is alleged, which is, admittedly not alleged in' the instant case.

5. The argument on behalf of the respondent No. 1 by his learned counsel Mr. Akhtar Mahmood, that only a formal correction with regard to the area of the survey numbers of the petitioner and the respondent No. 1 for the purpose of clarification has got to be made and it would not amount to any alteration or amendment of any substantial nature in the description of the properties, given in the P. T. D., 1 am afraid has no force. The variation in the area of the survey numbers of the petitioner and the respondent No. 1 is claimed only on the basis of the report of the City Survey Officer, which could not have been available without full‑fledged enquiry and that the altering or modifying the aera of these survey numbers would result in a substantial variation in the description of the properties transferred in consequence of P.T.Ds. already issued in favour of the transferees. Accordingly, there is no force in the contention that variation in the area of the survey, numbers transferred in favour of the petitioner would result only in a formal clarification and not a substantial modification in the description of the properties given in the P. T. Ds.

6. In the result, the impugned orders passed by the Settlement Authori ties are set aside and the petition is allowed with no order as to costs. s. A. H. Appeal accepted.