P L D 1984 Lahore 291 (PLP)

The brief facts of this case are that the property bearing No. SE‑XIY‑34 S‑7 is transferred through a Transfer Order in favour of Ibne Hassan Siddiqui who migrated to Canada and died in the year 1982. The present litigation is being pursued by both the daughters of the deceased.

2. The background leading to the present litigation is that the landlord on 13‑4‑1978 filed an application against his tenant Dr. Moazam Beg Mirza for eviction from one of the shops. the matter was decided on 13‑6‑1978 through a compromise allowed by the Rent Controller. Despite this event, it seems that the unforgiving tenant went ahead and .in order to settle his own scores with the petitioners started litigating with them from one Department to another. First of all, in the year 1979 he approached the Evacuee Trust Property Board to have the property in 'dispute declared as evacuee trust property. The Settlement Depart ment lent their weight in favour of the present petitioners and supported their case and opposed the plea of the property being evacuee trust property. It is admitted that the Department through written state ment (Annexure G ) in those proceedings supported the present petitioners by saying that the property stood rightly transferred in their favour. The net result of this exercise was that in the proceedings which went in revision upto the Federal Government it was held that the property was simple evacuee property correctly utilised by the Settlement Department with a finding that it had been purchased in open auction by Ibne Hassan, deceased. The Settle spent Department did not challenge these findings before any higher forum. The Evacuee Trust Property Board filed Writ Petition No. 252/11 of 1982 before this Court, which too was dismissed. Thus, this round came to a close.

3. Now, lately the same tenant in pursuit of his insatiable desire to wreak vengeance had resort to 'the Authorities in the Settlement Department by moving an application for getting transfer of the property cancelled on fresh and further allegations.

4. The viciousness of his second exercise this time before the Settlement Department is too patent on the record to call for further comment and speaking for myself, I am strongly of the view that a Government Department or its officers should never lend themselves to persons who approach them motivated by rancour or spite to settle their personal scores through depart mental forums. Such obliging officers when found to be privy to malicious and revengeful persons having no locus standi in the matter, would be in no better a position than persecutors. ‑Such a course is neither sanctioned by law nor by the norms or values of a civilised Muslim society. This would clearly amount to misuse and abuse of statutory power and in terms of the rules of discipline governing such officers constitute gross misconduct. In suitable cases the superior Courts on properly instituted proceedings have ample power to check this perversity of purpose of law. The officers so found delinquent may well also expose themselves to other actions at law. The learned Legal Adviser for the Department, Mr. Shahzad Jehangir, Advocate stated with candid frankness that the departmental policy by no means sanctioned or encouraged such tendencies.

5. In the face of the facts as they emerged at the bearing, there is no justification to harass the successors‑in‑interest of a deceased Muslim when the impugned proceedings are the offspring of a mala fide application and the designated authorities themselves suffer from want of jurisdiction. Let his soul rest in peace particularly when the law stands repealed. The repeal of the Act was designed to bring matters to a close and it is not per missible for creatures of the repealing statutes to quarrel with the policy of law creating them.

6. The latest view of the Supreme Court is that even in matters of fraud, the designated authorities under the repealing law have no jurisdiction to re open the matters which are transactions past and closed.. Reference may be made to Sher .Afzal Khan and others v. Haji Razi Abdullah and others (1984 S C M R 228). It has been held in the cited precedent that where a P. T. D. issued in favour of a party remained in the field until the repeal of the Settlement Laws, it would be a past and closed transaction. It was further observed :‑ "We do not see how, after the repeal of these laws, the authorities under the new dispensation that came into being under the repealing statute and under the new scheme promulgated in 1976, could undertake an enquiry in order to review and reopen such past anti closed transactions. Even a case of fraud could be enquired into. or adjudicated upon provided jurisdiction to exercise such power survives the repeal. No such provision was pointed out by the learned counsel. The exercise of jurisdic tion was, therefore, palpably coram non judice and wholly incompetent." In view of this enunciation, I must observe that I am obliged to hold that the proceedings initiated against the present petitioners after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, at the behest of a venomous and vindictive person who has his own axe to grind and for ulterior purposes are thus brutum fulmen and void ab initio.

7. However, in so far as the matter of the compensation pool is con cerned, the petitioners' learned counsel agrees that he is ready to undergo the exercise to satisfy the Authorities about the payment of the amount and should it be ultimately found that the auction money of Rs. 34,600 has not been paid, then petitioners undertake to pay the same. In respect of the recovery of transfer price or other admitted public dues, the repealing statute gives ample power to the Authorities under the repealing law.

8. The result is that the writ petition is accepted in the above terms. I would accordingly issue a direction in the nature of writ of prohibition restraining the respondents from doing that which they are not permitted by law to do and the impugned proceedings are held to be without lawful authority and of no legal effect. However, in view of the reasonable stand taken at the hearing by the departmental representatives, there shall be no order as to costs. M. Z. M. Petition accepted.