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Writ Petition No. 1883JR of ‑ 1962, decided .on 20th April 1966.
---- Sch., Part I‑Transfer of house‑Chief Settlement Commissioner while holding A regular allottee, also holding B as allottee of same house‑Order, held, suffered from error apparent on face of record‑Case remanded.
Sch. Part I‑Transfer of house‑ Claimant applicants more than one‑Claim of one having bigger or lower valuation‑Cannot constitute item of preference in matter of transfer‑One applicant preferred to exclusion of another on such consideration‑Order of transfer, based on extraneous consideration, held, illegal and without authority.
Ch. Altaf Hussain and others v: The C. S. C. and others P L D 1965 S C 68 ref.
Art. 98 Writ-- Mandamus‑Lower Court or tribunal basing its decision on consideration of matters absolutely outside ambit of its jurisdiction rather than matters which law requires it to consider and give decision on their basis‑Order liable to be quashed and case to be remanded back for decision afresh in accordance with law.
The Queen v. Cotham and another, Justices, and Wallace and Webb (1898) 1 Q B 802: K. B. Muhammad Yaqub v. The Secretary Provincial Transport Authority, Karachi and another P L D 1959 Kar. 507 and Ikram Bus Services v. Board of Revenue, West Pakistan etc. P L D 1963 S C 564 ref.
Art. 98‑Writ‑Order of tribunal found suffering from illegalities‑Objections, raised 'in petition on either side, of factual nature‑Lower Court or tribunal best forum for their scrutiny and adjudication‑Proper course, in such circumstance, to remit case to that forum.
Ghulam Mohy‑ud‑Din v. C. S. and R. C. and others P L D 1964 S C 829 and Syed Azmat Ali v. C. S. C. and others P L D 1964 S C 260.
M. A. Fareedi for Petitioner.
Nemo for Respondent No. 1.
Nasim Hassan Shah and Sh. Abdul Manan on 2E‑2‑66 and 4‑3‑66 and Raja Muhammad Anwar on 7‑4‑66 for Respondent No. 2.
Dates of hearing : 28th February and 4th March 1966.
The dispute in this case is about House No. B‑VII‑S‑2‑104, situated in Street Awanan Mohallah Khand Purian (Purana Shahr) Sheikhupura. The D. S. C., by means of his order, dated 14‑9‑1959 (Annex. R/2 at page 75 of this Court's file), transferred the whole of this house to respondent No. 2 on the ground that his son was an allottee and that he was as such entitled to retain it. The petitioner filed a review application alleging that she was in possession of ground‑floor of this house on the eve of Pakistan, that her husband. (who was dead) was an allottee of the house; that she had filed a CH Form; that the order, dated 14‑9‑1959, had been passed in her absence without summoning her and that the same should be reviewed and the house be transferred to her; because her occupation was prior to that of the respondent. This application was taken up by Mr. M. A. Wasty, D, S. C. I, who held that it was not established before him as to whether he had the power to review or not. On merits, however, he held that the petitioner was a non‑claimant while the respondent was a claimant and, as such, preferable to the petitioner. With this observation he dismissed the said application on 2‑1‑1960 (Annex. D). The petitioner filed an appeal which was dismissed by the Additional S. C. on 28‑1‑1960 (Annex. F). She attempted a review before that officer who dismissed it also on 15‑3‑1960 (Annex. G). She filed a revision petition against the order dated 14‑9‑1959 of the D. S. C., and order dated 28‑1‑1960 of the' Additional S. C. This revision was also dismissed by Khan Farzand Ali. Khan, S. C., on 10‑9‑1960 (Annex. I). She then filed a second revision petition (Annex. J), which was dismissed by the C. S. C. (Malik Fateh Khan), on 4‑2‑1961 (Annex. K). She attempted a review application which was also dismissed by the C. S. C. on 23‑7‑1962 (Annex. M). She thus having failed in all the Settlement Courts has filed the present writ petition in this Court.
2. Since muck of the criticism levelled by the learned counsel for the petitioner is directed against the order of the C. S. C. dated 4‑2‑1961 (Annex. K), it is advisable to reproduce the same in extenso. This order Malik Fateh Khan has not signed as Chief Settlement Commissioner, but it is obvious that he was hearing second revision against the order of Khan Farzand Ali Khan and his mere omission to describe himself as a S. C., would not, therefore, make any difference. The impugned order reads as follows:‑
"The dispute relates to a small house in Sheikhupura which has been in possession of Mst. Taj' Bibi as also Ghulam Muhammad. Both the Courts below transferred it to Ghulam Muhammad. Mst. Taj Bibi filed a revision before Khan Farzand Ali Khan which has been transferred to me by order of the learned Chief Settlement and Rehabilitation Commissioner for disposal. After hearing the parties I have come to the conclusion that there is not much to be said in favour of the petitioner. She is an allottee. She has a meagre claim of Rs. 540 while the respondent has a claim for Rs. 12,000 and is an allottee of the whole house. Under these circum stances, there was nothing left but to transfer the house to Ghulam Muhammad. The petitioner is undoubtedly a poor widow but in enforcing the provision of law poverty is not to be kept in view. The petition thus fails and is dismissed herewith."
Learned counsel for the petitioner submitted that:
(a) That the aforesaid order of the C. S. C., suffers from errors patent on the face of the record inasmuch as he call, the petitioner as an allottee and at the same time describes the respondent as an allottee of the whole house. Both these positions could not be correct and there is a factual mistake in calling the respondent as an allottee of the whole house,
(b) that the C. S. C., has taken extraneous matters into consideration while rejecting the entitlement of the petitioner. The learned counsel submits that the C. S. C., gave preference to the respondent on the ground that his claim was of a higher amount (Rs. 12,000) as against that of the petitioner (For Rs. 540.00). He submits that under the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), (hereinafter called the Act or Act), this is no consideration to prefer one claimant over the other. He further submits that no doubt the petitioner was‑ accepted as a claimant by the C. S. C., but then he should have considered the entitlement of both the parties on the considerations relevant under the Schedule to the Act and not the amounts of their claims. He points out that the relevant considerations to be seen were the dates of possession of the parties; the nature of their possession and the point that the respondent was claiming indirectly on the basis of the alleged allotment (and possession) of his son while the petitioner was a direct claimant both from the point of view of successor‑in‑interest of her allottee husband as laid down in Nawab Arshad All Khan v. D. S. C. Circle I, Lahore and others P L D 1962 Lah. 708), and also under Notification; dated 7‑3‑1960, printed at page 123 of the Settlement Manual Old Edn. which states that where husbands are allottees, their wives, who are living with them, would also be allottees;
(c) that the observation that the respondent was on allottee of the whole house besides being inconsistent with the earlier portion of the order is even otherwise incorrect and is based on misreading or omission to read the alleged allotment order (Annex. R. 5) (and its connected documents) inasmuch as in it, the allotment, if any, is in the name of the son of the respondent and not the respondent himself and, as such, the C. S. C., has erred in calling the respondent himself as an allottee. If the allottee is the son then the possession is also of the son. In this way the father, i.e. the respondent, it is submitted would be an indirect claimant as against the petitioner. Secondly, it was pointed out that this document does not show the allotment to be of the whole house irrespective of the fact as to whether it is in the name pf the son or the respondent and that this document has been misread from that point of view as well. For this purpose, learned counsel took me through the grounds for revision and grounds of appeal on the rehabilitation side of the case as also the basic orders and noting stages through which the case passed together with the plan of the house and the list of other occupants.
3. I have given my careful consideration to the submissions made above and I think that they have great force. Taking up the point at (a), it is obvious ‑that the order of the C. S. C. does suffer from an error patent at its face. He does not that the petitioner is an allottee and also states that the respondent is an allottee of the whole houses. It is clear that both these things cannot be correct. Learned counsel for the respondent submitted that actually the C. S. C., intended to say that the petitioner was not an allottee; and that the word "not" has been inadvertantly omitted in the order. On the other hand, learned counsel for the petitioner submitted that after writing that the petitioner was an allottee, the only ground, on which the C. S. C. gave preference to the respondent, was that he had a. larger claim and as regards his allotment he intended to write "and though is not an allottee of the whole house". It is not possible for me to state as to which of these versions is correct or to hold where the mistake is, but the fact remains that the mistake is there which is evident on the very face of the order itself. Secondly another apparent mistake in the order of the C. S. C., is that regardless of the extent of the allotment)‑he wrote that it was the respondent who was the allottee. The true position, however, is as to what was written in the earliest order of the D. S. C. dated 14‑10‑1959 (Annex. R/2) that Mr. Muhammad Siddiq, son of Ghulam Muhammad was the allottee of this house. It will thus appear that the C. S. C., has not only committed the earlier mistake but he has wrongfully assumed respondent Ghulam Muhammad as to be. (if at all) an allottee. It is further to point out that in the CH Form filed by the respondent which has been seen by me from the Settlement file, which had been summoned for examination in this case, the respondent states his son to be in possession which also lends support to the fact that allottee is his son and not he himself. On the matter of allotment the reliance of the respondent is on the order dated 15‑12‑1954, passed by the Commissioner, Lahore Division, which is alleged to have regularised the possession of the respondent (actually it should be the son of the respondent). A copy of this order has been filed in the form of Annex. R/5 by the respondent. It is in a dispute between one Muhammad Jalees and the son of the respondent and talks about the portion of one Mst. Allah Rakhi alone and not of the portion of the present petitioner or her husband.
4. As regards the point at (b) that again is a weighty point. The decision of the C. S. C., is based on the consideration that the claim of respondent was of a higher value, therefore, he was to be preferred. Such 4 consideration was' quite extraneous to the provisions of the Schedule to the Act. In the said Act, the points of preference are as follows:
(i) That if one is a direct claimant but the other claims indirectly on the basis of the allotment and possession as for example of his son, then a direct claimant is to be preferred to the indirect claimant. Ch. Altaf Hussain and others v. The C. S. C. and others P L D 1965 S C 68 refers.
(ii) that if both are claimants then he who obtained the prior possession is to be preferred. The real basis is the possession and in this way there is no difference between an allottee or non‑allottee as both of them are at par, as has been laid down in various rulings of this Court.
It will thus appear that the amount of claim being of a bigger or lower valuation has no consideration and cannot constitute an item of preference. The order of the learned C. S. C., which is based on this extraneous consideration will have, therefore to be set aside and declared as being without lawful authority. It was held in The Queen v. Cotham and another, Justices, and Wallace and Webb ((1898) 1 Q B 802), that where the justices have so far departed from the plain words of Act and decided the case upon some extraneous consideration, then they could not be said to have heard and determined the matter in accordance with law. The actual passage at pages 806 and 807 of the report in the words of Wills, J., is as follows:‑
"We have next to consider whether the case is one in which a mandamus ought to be granted directing the justices to hear and determine the matter according to law. It is obvious that the distinction between an erroneous decision and a failure to hear and determine according to law may be very fine, and the cases on the subject show that it is so. I take the governing principle to be that if the justices have applied themselves to the consideration of a section of an. Act of Parliament, and have, no matter how erroneously, determined the question which arises upon it before them, their decision cannot be reviewed by process of mandamus. That is so whether there is an appeal from their decision or not. If there is an appeal, mandamus will not lie; if there is not, their decision is final. But when it appears that they have taken into consideration matters which are absolutely outside the ambit of their jurisdiction, and absolutely apart from the matter which by law ought to betaken into consideration, then they have not heard and determined according to law may give as an instance the case of Reg. Bowman and others. (1898 1 Q B 663) which came before a Divisional Court a short time since. There the justices did something not very far off putting the licence up to a kind of auction, and said that nobody should‑ have it who was not willing to pay 10001. for it. The Court granted a mandamus, holding‑rightly, I think that the justices had taken into consideration matters outside and apart from any of their statutory powers, and therefore, that they had not heard and determined according to law. Another instance is the case, referred to by my brother Kennedy, of Beg. v. De Rutzen (1 Q B D 55), where again the justices had taken into consideration matters outside the statutes under which they purported to act, and the Court granted a mandamus to hear and determine the applica tion before the justices according to law. Here the matters which the justices have into consideration apart from the statute are not stated upon affidavit, but it is sufficient if it can be demonstrated that they must have considered such matters. When it is demonstrated, as it is here, that they granted a licence in respect of a place which was not an inn, and had not theretofore been kept as an inn, and from which there was no person who had kept it about to remove, it is plain that they cannot have decided according to law; they must have acted upon some extraneous consideration not warranted by the statute. It is not a question of a mis construction of the statute. No constructions can alter the plain words of the Act, or make the premises in question premises theretofore kept as an inn, or Wallace a person about to remove from them. It is a case in which the justices have so far departed from the plain words of the Act deciding upon some extraneous consideration, I know not what‑that they cannot be said to have heard and determined according to law. Under those circumstances, I have no doubt that a mandamus is the proper remedy."
Similarly in K. B. Muhammad Yaqub v. The Secretary, Provincial Transport Authority, Karachi and another (P L D 1959 Kar. 507) a Division Bench of this Court held as follows:‑
"It is the right of every person in a case where there is public duty cast on a public servant to decide a matter which will affect the interest of a citizen, to have such matter decided. This is a legal right which can be subject of enforcement by means of a writ of mandamus. Writs of mandamus are not issued only for protection of rights of property or status. They are also issued to enforce the right to have a matter decided. The right to have a matter decided means a right to have a matter decided in accordance with law. If there be a consideration on which a public officer is going to act in deciding a matter and by law he cannot take that matter into consideration, a mandamus can be issued to him to exclude such matters from consideration. That is involved in the right of the person concerned to have an application determined in accordance with law. He has a right that the public officer should take into consideration only the matter which the law requires him to consider and give a decision on their basis."
Similarly, in Ikram Bus Service v. Board of Revenue, West Pakistan, etc. (P L D 1963 S C 564) the Supreme Court held as follows:
"Even an administrative body such as R. T. A. is under legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged in accordance with the law."
In the said case the Supreme Court found that the R. T. A had not dealt with the applications before it in accordance with law but rather disposed them of on extraneous considerations and the Supreme Court quashed the orders of that Authority and remanded the case back to them for redecision on merits in accordance with law. Respectfully following the principle laid down in the various above‑noted authorities, I hold that since the C. S. C., has not decided the revision petition in accordance with law, a direction will have to be issued to him to re-decide the said matter after excluding the extraneous consideration and in accordance with, law.
5. As regards the point at (c), this again has a great merit and I have made mention of it in Para. 3 of this order earlier. The learned C. S. C., is wrong in saying that the allottee (if at all) was the respondent himself. The alleged allotment order is Annex. R/5. It is a decision in some revision by a Rehabili tation Commissioner dated 15‑12‑1954. This revision was filed by Muhammad Siddiq, con of the respondent and not the respondent himself. The allotment which this purports to make is in the name of Muhammad Siddiq and not the petitioner. The petitioner in his CH Form also described his son to be in posses sion and made reference to the said order, dated 15‑12‑1954. The D. S. C., in his order, dated 14‑10‑1959, recites the son of the petitioner as an allottee. It is thus obvious that the C. S. C., has misread the record and his order suffers from a patent error on the record when he calls the respondent as an allottee.
6. From what has been said above, it is clear that the order of the C. S. C., suffers from errors patent on the record and is based on extraneous considerations in the matter giving preference to one claimant over the other and is, therefore, without lawful authority and the case will have to be remanded back to him to decide it afresh in accordance with law, as was done in Ghulam Mohy‑ud‑Din v. C. S. & R. C. and others (P L ‑ D 1964 S C 829).
7. The learned counsel for the respondent had no reply to the above points. He, however, submitted that the petitioner in this Court has not come with clean hands and as such her writ petition should be dismissed on this short ground. The actual submission was that Annex. A, which is a certificate issued by the Department to the effect that the petitioner is an allottee, contains, certain such additions which do not exist in the office copy of that certificate as retained in the D. S. C's File. The certificate Annex. A reads as follows:‑
"Office of the Deputy Settlement Commissioner, Sheikhupura." "No. 22873 Dated 15‑10‑1960." "This is to certify that Mst. Taj Bibi wd/o Jamal Din is in possession of portions previously with Sardar Muhammad and Fazal Din since 1‑7‑1948 and 15‑11‑1950 respectively of House No. B. VII S‑2‑104 at Sheikhupura. .
| "Senior Allottee. Sd. Deputy Settlement Landowner. Commissioner, The house is allotted Sheikhupura." to Mr. Jamal Din.
|
The objection is that the portion underlined' does not exist in the office copy of this certificate in the D. S. C's File and is an addition made by the petitioner herself in Annex. A. The issuance of which, otherwise, is not disputed. On the other hand, the contention of the learned counsel for the petitioner is that the fault is not of the petitioner but of the Department in not retaining a correct copy or may be, he says, the respondent got the real office copy removed and in its place got put up an incomplete sort of office‑copy to take up the present plea in this Court. In view of the order, which I am proposing to pass in this case, namely, to remand the case to the C. S. C., to re-decide the revision petition, afresh according to law, I do not express my own views on this aspect of the case. I may, however, point out that if tote certificate in dispute is ignored, then there exists another certificate in the D. S. C's File at page 54 which reads as follows:
"Certified that Jamal Din son "Certificate."
of Jani is allottee of House
No. VVII‑2S‑104 (Two rooms
only) vide Survey Register No.
1/13 with effect from 1st
August 1948.
(Sd.) Deputy Settlement
Commissioner,
Sheikhupura." and which can quite properly be pressed into service by the petitioner to advance her case. In that view of the matter, since another certificate also exists in the D. S. C's File and since the point raised by the learned counsel for the respondent is such which is under controversy and for which I have no proper material on this record to decide and also because I am remanding the case (including the question as to whether the petitioner is an allottee or not and as to whether the respondent's son was allottee of the whole house), I cannot give effect to the objection raised by the learned counsel for the contesting respondent.
8. It was next contended by the learned counsel for the respondent that even if the order of the C. S. C., is to be ignored then there are the orders of the other subordinate Settlement Authorities which, he submitted, were quite right on the merits of the case and, as such, the case should not be remanded. On the other hand, learned counsel for the petitioner raised a number of objections with regard to those orders as well as inter alia challenged that the said orders suffer from the same defects which exist in the order of the C. S. C. (including many other defects) and were, therefore, in no way correct or lawful orders. I think I need not go into this controversy because) some of the objections of either side were such which were of factual nature and the Court of the C. S. C., would be the best forum for their scrutiny and adjudication and not this Court.' Even otherwise also the law as laid down by their Lordships of the
Supreme Court in Syed Aamat Ali v. C. S C. and others (P L D 1964 S C 260) is that where the order of any local tribunal is found to be suffering from illegalities, the proper course is to remit the case back to that forum.
9. For the various reasons given above, I accept this writ petition and declaring the orders of the C. S. C., as to be without lawful authority remand the case back to him to decide the revision petition, of the petitioner afresh in accordance with law after notice to all the parties concerned and after taking such points which the parties may raise before him. There will be no order as to costs.
K. B. A. Petition accepted. Case remanded.
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