1980 PLP 1980 (CLC)

Art. 199-Writ jurisdiction-Contention that after withdrawal of civil suit petitioner cannot invoke extraordinary jurisdiction of High Court-Held, party cannot be deprived of right to move Court even when civil suit pending. Mst. Sattan and others v. Group Captain Masroor Hussain P L D 1962 Lah. 151 and Salahuddin and others v. Frontier Sugar Mills & Distillery Ltd. P L D 1975 S C 244 rel. M. S. Baqir and Sardar Sami Hayat for Petitioner. Nemo for Respondents Nos. 1 to

3. Khan Muhammad Younis Khan and Ghulam Nabi Bhatti for Respon dents Nos. 4 and

5. Date of hearing: 3rd March, 1980. The petitioner has challenged the order passed by the Settlement Commissioner, Multan and Bahawalpur Divisions, dated 2nd October, 1973, whereby he confirmed the order passed by the D. S. C. on 22nd June, 1970, taking away certain alleged excess area from Bungalow No. C-1, Burewala, which was transferred to him on 27th January, 1960. P. T. O. (Annex `B') was issued on 7th March, 1960 and P. T. D. (Annex, `C' followed thereafter. In both documents `full house' is mentioned. A perusal of the P. T. D. shows that public dues were paid on 23rd April, 1966. The Deputy Settlement Commissioner has not mentioned the date of issue of P. T. D. under his signatures.

2. Report (Annex. 'E') was submitted by the Settlement Inspector on Ist June, 1970, whereby he suggested that "the previous report on the consolidated sketch map drawn by the concerned official of the office shows that there is no excess area-available in this bungalow which is absolutely wrong, as an area of 4845 sq. yards is in excess and available for disposal. The same may be included in auction which is available on the Northern side of the bungalow going from East to West. The transferee may be informed on the above given address." The Deputy Settlement Commis sioner on the same day passed the order "include in auction under intima tion to transferee." Measurement was again done and the Sub-Inspector made another report on 10th June, 1970 wherein the calculations were different. On the following day the Deputy Settlement Commissioner passed the following order "The transferee of the property must be informed well before the auction so that consent from him can be obtained that which side of land he is prepared to spare." The alleged excess area was auctioned carrying it into two plots which were purchased by one Noor Muhammad and Muhammad Idrees as per Annexure `F and F-1'. The bid sheet shows that neither the Additional Settlement Commissioner has signed them nor any date is mentioned thereon. TIX approval of auction thus seems doubtful.

3. The petitioner filed an appeal on 2nd July, 1970, which was dismissed by the Settlement and Rehabilitation Commissioner vide impugn ed order dated 2nd October, 1973.

4. Mr. M. S. Baqir, learned counsel for petitioner, vehemently argued that the property had gone out of the compensation pool after the issuance of P. T. D. the petitioner was condemned unheard and all these proceedings were taken behind his back. Lastly he submitted that it was a past and closed transaction and under paragraph 19 of Statement Scheme I, the petitioner wars entitled to purchase the excess land, if any, on payment of prevailing market value. He submitted that the case was examined twice before the P. T. D. was issued by the Settlement Authorities in 1970 in petitioner's absence, and the Department at best could claim the price of the excess land but could not put the property in the auction pool. Reliance is placed on Abdul Hamid Khan v. Settlement and Reha bilitation Commissioner and others (P L D 1966 S C 719) in head note (b) of which it is mentioned "party has no locus standi to object to transfer of excess area to party in possession of house". There is sufficient force in the sub mission made by learned counsel for the petitioner that the house having gone out of the compensation pool the Settlement Authorities had become functus ofccio. Aminuddin v. Settlement Commissioner and others (1973 S C M R 624) and Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another (1974 S C M R 8) are referred. Regarding the last submission that it is a. past and closed transaction reliance was placed on Muhammad Yusuf v. The Chief Settle ment and Rehabilitation Commissioner etc. (P L D 19 8 S C 101), Income Tax Officer v. Cement Agencies Ltd. (P L D 1969 S C 322) and' Noor Din v. The Chairman Miani Sahib Graveyard Committee, Lahore (P L D 1973 S C 17).

5. Learned counsel for the petitioner submitted that the D. S. C. could not review the order after ten years. On account of amendment wade in section 21 of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958, by Ordinance II of 1968, only clerical and arithmetical mistakes could be corrected by the successor-in-office. So far as this power of correction of clerical and arithmetical mistakes is concerned this was interpreted in Muhammad Tufail v. Abdul Ghafoor and others (P L D 1958 S C 201). 1t was held that the authority to exercise power of review was limited and could not determine afresh the rights of the parties.

6. Learned counsel for the auction-purchaser cited a Single Beach judgment of this Court Khan Tufuil Muhammad Khan v. Abdul Hamid and others (P L D 1967 Lah. 1058) wherein it was laid down that paragraph 19 of Settlement Scheme I was ultra vires the provisions of the Act, but unfortunately the learned judge did not take into consideration Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner etc (P L D 1966 S C 719).

7. His next submission was that the registered notice was issued to the petitioner. Assuming if the notice was not served the principle laid down in Single. Bench's judgment of this Court reported as Mst. Bakho v. Mst. Sairan and another (P L D 1963 Lah. 72) to the effect that a person having been heard by a higher authority could not make any grievance, would be attracted. Much stress was laid that the P. T. D. was void since it was based on an order which was illegal the property had not gone out of the compen sation pool, the matter was not a past and closed transaction and the case law cited by the learned counsel is not attracted. I am afraid, I cannot agree with the submissions made by the learned counsel for the g simple reason that the right of transfer in respect of the excess land, in any, was available to the petitioner. All that the Settlement Authorities could do was to recover the market value of the land. Transfer of house surely is a past and closed transaction. Reliance was placed on Yousaf Ali v. Muhammad Aslam Zia and others (P L D 1958 S C (Pak.) 104) and Ali Muhammad v. Hussain Bakhsh and others (P L D 1976 S C 37). In the latter case the principle laid down in the former case was reiterated. The learned Judges of the Supreme Court in these cases held that a party was not precluded from challenging such an order in the High Court. The jurisdiction of the civil Court was also referred to in the judgment of Yousuf Ali's case. He relied on another Division Bench judgment of the Supreme Court reported as Muhammad Anwar Khan v. M. A. Wasti S. & R. Commissioner etc. (1975 S C M R 372) in support of his submission in which as observation was made that the 'Jurisdiction to question the legality of transfer after the issuance of P. T. D. is not taken away from the Settlement Authorities or the High Court, but the case is obviously distinguishable, for, it has dealt with the transfer of the property on a forged Compensation Book. The trend of authorities is in favour of the petitioner on the point that; Settlement Authorities become functus officio so far as the reopening of the case is concerned.

8. The next point raised by learned counsel for the respondent was that there was delay of about five months in filing the writ petition, it having been filed on 5th March, 1974 whereas the impugned order was parse on 2nd.October, 1973. It was argued that it was hit by the principle of laches. No period of limitation is provided for filing the write petition. In my view lapse of 5 months can hardly be considered as delay in/ approaching the Court,

9. Further it was contended that the petitioner having alienated the property was no more an aggrieved party to approach this Court for relief. There is hardly any substance in this objection as well, for, even if the property has been alienated by the petitioner and his right of transfer has been challenged he has a vested right to approach this Court, which cannot be taken away from him.

10. Lastly it was argued that since the petitioner had filed a suit ands had withdrawn it he cannot invoke the extraordinary jurisdiction of this Court. The party cannot be deprived of the right to move the Court eve E if a civil suit is pending. This was so held by Shabir Ahmad andl Anwarul Haq, JJ. in Mst. Sattan and others v. Group Captain Masroor Hussain (P L D 1962 Lah. 151) wherein it was observed that even the pendency of civil suit would not deprive the person of invoking the extraordinary jurisdiction of this Court This principle was upheld in Salahuddin and others v. Frontier Sugar Mills & Distillery Ltd. (P L D 1975 S C 244) another judgment of Anwarul Haq, J. wherein this question was elaborately discussed. No other point was raised.

11. The upshot of the discussion is that the petition succeeds, the orders passed by the Settlement Authorities are quashed. However, if the Settlement Authorities find that there is an excess land which has been transferred to the petitioner he shall be subjected to pay the market value of such area, if any. Since complicated questions of law are involved,, the parties are left to bear their own costs. M. K. A. Petition accepted.