P L D 2002 Supreme Court 816 (PLP)

RANA BHAGWANDAS, J.‑‑This petition; arising out of Lahore High Court judgment dated 30‑11‑1998 dismissing writ petition of the petitioner against the respondents has a chequered history.

2. Dispute between the parties relates to Property No.SE.III, 40‑S‑21, Tagore Park, MacLeod Road, Lahore, which was jointly transferred to Abdul Haq, Abdul Ghafoor and Allah Bakhsh (three brothers) as displaced persons vide P.T.O. dated 8‑2‑1960. transfer order was challenged by Chaudhry Ali Muhammad and Din Muhammad through two separate appeals before the Additional Settlement Commissioner, Lahore, who, vide order dated 30‑6‑1960 dismissed both the appeals. However, revision petition of Chaudhry Ali Muhammad was partly allowed by the Settlement Commissioner with the direction that second floor of the house shall be transferred to him. Revision petition of Din Muhammad was, however, dismissed. Transfer of the remaining portion of the house was left intact in favour of Abdul Ghafoor and Abdul Haq vide order dated 30‑5‑1961. It may not be out of context to observe here that by virtue of this order Allah Bakhsh and Din Muhammad were completely eliminated from the process of transfer of property. All the parties filed second revision petitions before the Chief Settlement Commissioner, who, vide order dated 14‑9‑1961, set aside the order dated 30‑5‑1961 passed by the Settlement Commissioner and restored that of Additional Settlement Commissioner dated 30‑6‑1960. Subsequently, Chaudhry Ali Muhammad tiled Writ Petition No. 1189‑R of 1961 before the Lahore High Court, challenging vires of the order dated 14‑9‑1961 passed by Chief Settlement Commissioner, which was dismissed vide judgment dated 3‑1‑1966. However, L.P. A. No. 156‑of 1966 before the Division Bench of Lahore High Court, was accepted vide judgment dated 5‑10‑1973 whereby order dated 30‑5‑1961 passed by Settlement Commissioner was restored. Since through this judgment Allah Bakhsh was completely disentitled to the transfer of property, he filed C. P. S. L. A. No.464 of 1973 before this Court, in which leave was granted. Ultimately Civil Appeal No.101 of 1974, filed by him was partly accepted vide judgment dated 11‑10‑1986, operative part whereof may be reproduced in extenso for the sake of convenience:‑‑ "We, therefore, partly allow this appeal and declare that alongwith respondents Nos.2 and 3 the appellant too is entitled to the transfer of a portion of the house, which remains after excluding the part transferred to respondent No.4. The writ issued by the High Court may be amended accordingly."

3. Late Abdul Haq, being aggrieved by the aforesaid directive of this Court filed Civil Review Petition No.51‑R of 1986, essentially pleading that appellant Allah Bakhsh was not entitled in law to claim transfer of any part of the property as it had never been in his possession in his own right Review was, however, dismissed vide order dated 11‑5‑1988. At the stage of review, for the first time, it transpired that the petitioner had procured modified transfer order in his favour on the premise that Abdul Ghafoor had surrendered his rights in the property in his favour through association agreement dated 29‑9‑1964 and got the transfer order amended accordingly on 23‑2‑1974 from the Deputy Settlement Commissioner. On acquiring knowledge with regard to the order dated 23‑2‑1974, legal heirs of Allah Bakhsh, who was real brother of Abdul Ghafoor and Abdul Haq submitted an application before the Settlement Commissioner (Urban and Land), Punjab Board of Revenue, Lahore, who summoned the parties, heard them and on perusing the record on I 1‑2‑1998 ordered addition of name of Abdul Ghafoor in the Transfer Order No.1348 dated 23‑2‑1974. Petitioner impugned this order as well as consequential amended transfer order of even date through Writ Petition No.81‑R of 1998 before the Lahore High Court seeking a declaration that both the orders are illegal, ab initio void, coram non judice, ultra vires, in excess of jurisdiction and without lawful authority. Writ petition was, however, dismissed by a learned Judge in Chambers vide judgment dated 30‑11‑1998, which is the subject‑matter of this petition for leave to appeal.

4. We have heard Mr. A.K. Dogar. learned Advocate Supreme Court for the petitioner at great length and with utmost patience. Learned counsel firstly contended that the High Court acted illegally in disturbing the finding of fact qua the entitlement of the petitioner and the surrender of proprietary rights by Abdul Ghafoor in favour of petitioner's predecessor‑in‑interest i.e. Abdul Haq. Mr. Dogar vehemently urged that in the exercise of Constitutional jurisdiction, High Court could not substitute its findings for conclusions arrived at by the officers in Settlement hierarchy, which was vested with exclusive jurisdiction in the matter of transfer of evacuee property.

5. We are not inclined to agree with the submission of the learned counsel as the findings of fact recorded by a Tribunal, howsoever high, are neither immune from judicial review nor sacrosanct. Learned counsel is correct to the extent of submitting that generally superior Courts, do not embark upon themselves the duty of making roving enquiries into disputed questions of fact but in a case where the facts are admitted and the functionaries have arrived at divergent findings in the background of factual aspects, High Court is always within its jurisdiction to determine as to which of the functionaries decided the case rightly. Indeed High Court has simply dismissed the writ petition on merits and not disturbed the findings of fact. Adbul Haq, deceased intentionally, did not place the order dated 5‑2‑1974 and consequential amended Transfer Order dated 23‑2‑1974 before the Supreme Court. Indeed, late Abdul Haq, who contested the proceedings throughout up to this Court in Civil Appeal No. 101 of 1974 decided in October, 1986, never pleaded exclusion of his real brother Abdul Ghafoor from the property by producing the order of acceptance of agreement of association by Abdul Ghafoor, which was rightly held to be a fabricated document, prepared in a clandestine manner. Learned Judge in Chambers was absolutely right in his observation that contention of the respondent that agreement was in fact a smuggled document could not be lightly ignored. To quote the High Court "If it was a genuine document approved in routine proceedings, the petitioner could have brought it to the notice of the Supreme Court. This fact having not been disclosed by the petitioner its sanctity is not beyond doubt. This point was admittedly not urged before the Supreme Court by petitioner, although the case was hotly contested by the parties". Learned Judge went on observing that "note given by the petitioner in his review petition is of no consequence as in the body of the petition, there is no mention of surrender of right by Abdul Ghafoor in favour of Abdul Haq father of the petitioner". Learned counsel attempted to justify the omission out that in the note below the review petition in Civil Appeal 1974, A.O.R for Abdul Haq had submitted that the deceased respondent No.3 Abdul Ghafoor had surrendered all his rights in the disputed property in favour of Abdul Haq. Be that as it may, neither this act was incorporated in the body of the petition nor taken as a ground of defence in the concise statement of facts filed by Abdul Haq in Civil Appeal No. 101 of 1974, which was decided on merits. Mere note by the A.O.R. at the bottom of memo, of review petition, in our view, is either sufficient nor conclusive to hold that in fact the document of association agreement approved by the Deputy Settlement Commissioner and consequential amended transfer order excluding Abdul Ghafoor did in fact exist or these are genuine documents. We do not agree with the submission that the High Court should have summoned the record, from the Settlement Authorities before dismissal of the writ petition, as the High Court generally does not enter into controversial facts. Admittedly Abdul Haq, Abdul Ghafoor and Allah Bakhsh are real brothers and, thus, entitled to the transfer of the property on the basis of their possession. Abdul Haq, at no stage of the proceedings, in the earlier round ever pleaded that he was the sole owner of the property to the exclusion of Abdul Ghafoor by virtue of relinquishment of his right in his favour. We are afraid, we cannot subscribe to the view of the learned counsel when he states that there was no occasion for late Abdul Haq to agitate this issue before this Court in the earlier appeal. Petitioner having abandoned his alleged right before this Court in the earlier round of litigation is legally estopped from raising this belated plea subsequent to the impugned order of the Settlement Commissioner passed in compliance with the directive given by this Court in Civil Appeal No. 101 of 1974. Reference to Murree Brewery Co. Ltd. v. Pakistan (PLD 1972 SC 279), Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24) in the circumstances is, therefore, completely out of context and of no avail to the petitioner. We are of the considered view that by not accepting petitioner's afterthought and manoeuvred plea founded on manipulated documents and upholding the impugned order of the Settlement Commissioner passed in consonance with' the letter and spirit of this Court directive; High Court neither committed, any illegality nor material irregularity warranting interference by this Court.

6. By referring to Abdul Ghaffar v. Azizuddin (1968 SCMR 662), Muhammad Husain Munir v. Sikandar (PLD 1974 SC 139) and Irshad Ahmad v. Settlement Authority (1981 SCMR 758), learned counsel attempted to persuade this Court for the grant of leave against the impugned judgment. He strenuously urged that in fact the order dated 5‑2‑1974 passed by the Deputy Settlement Commissioner could not be reviewed by the Settlement Commissioner in 1998 as latter inherently lacked power of review, which has to be expressly conferred under the statute. We regret the argument is completely misconceived and fallacious on the face of it, as this plea was never raised before the High Court. In our considered view, the power exercised by the Settlement Commissioner appears to be in the exercise of power of supervision and revision against order of a subordinate officer in order to correct the errors of law. Admittedly, Deputy Settlement Commissioner, whose orders were, for the first time, relied upon by the petitioner, was subordinate to the Settlement Commissioner, who, in the exercise of his powers conferred under the law, acted only to give effect to the orders of this Court. In no manner did the Settlement Commissioner exercise the power of review and, thus, submission of the learned counsel is wholly beyond the point. It is well‑settled that a mixed question of law and fact, not raised before the forums below, cannot be raised, for the first time, before this Court in the exercise of its Constitutional jurisdiction. Mr. Dogar submitted that argument advanced by him being a pure question of law could be raised before this Court even though not raised before High Court. We are not inclined to agree with this submission of the learned counsel as the submission is devoid of any force. A party cannot be permitted to raise a contention involving an enquiry into facts, for the first time, before the Apex Court. It is, neither the function of the High Court, while hearing a Constitutional petition, nor of this Court to enter into an enquiry of facts of the present nature. A reference may be made to Hamid v. Khushi Muhammad (1971 SCMR 365), Muhammad Sadiq v. Commissioner, Rawalpindi Division (1973 SCMR 422), Said Quresh v. Ghana Begum (1974 SCMR 528), Mad Ajab v. Awal Badshah (1984 SCMR 440), Miraj Sons v. United Bank Ltd. (1985 SCMR 987), Shah Sultana v. Shaukat Ali (1985 SCMR 1568), Neelam Mawaz v. State (PLD 1991 SC 640), Zeenat Manufacturing (Pvt.) Ltd. v. Secretary, Survey and Rebate, CBR (1999 SCMR 979. 7. learned counsel referred to Abdullah Khan v. Nisar Muhammad Khan (PLD 1965 SC 690), Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98), Muhammad Chiragh v. Muhammad Ali Khan (1983 SCMR 432), Umar Hayat v. Deputy Settlement Commissioner‑I, Lahore (1992 CLC 530), Fateh Muhammad v. Hajra (1999 CLC 143) and Mst. Mukhtar Begum v. Ala‑ud‑Din (1999 SCMR 914), which are distinguishable on facts and hardly relevant to the case of the petitioner.

8. Lastly, learned counsel submitted that the Settlement Commissioner, while passing the impugned order dated 11‑2‑1998 did not act in consonance with the letter and spirit of this Court judgment, inasmuch as, in appeal filed by legal heirs of Allah Bakhsh against Abdul Haq and Abdul Ghafoor, sole issue for examination before this Court was the entitlement of Allah Bakhsh to the property irrespective of the right and interest of Abdul Ghafoor in the property, therefore, the Settlement Commissioner should have followed the ratio of the judgment rather than the obiter of this Court. On a careful scrutiny of the earlier judgment of this Court and the order of the Settlement Commissioner impugned before the High Court, we are of the firm view that, in fact and lave the Settlement Commissioner was bound to give effect to the direction of this Court, which was couched in Ilea, and unequivocal terms. By complying with the directions of this Court, neither the Settlement Commissioner acted illegally nor, does the impugned judgment of the High Court upholding the same suffer from any legal flaw or jurisdictional defect or error of law. Reference to Rawalpindi Central Cooperative Bank Ltd. v. Custodian, Evacuee Property (PLD 1973 Lahore 230), Hidayat Ullah v. Deputy Commissioner/Additional Settlement Commissioner (1976 SCMR 243) and Abdul Ghafoor v. Chief Settlement Commissioner (1985 SCMR 464) to our mind is uncalled for and misconceived.

9. For the aforesaid facts, circumstances and reasons the petition is held to be without any force and substance. It is accordingly dismissed and leave to appeal refused. M.B.A./F‑66/S Petition dismissed.