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Writ Petition No. 29 of 1964, decided on 14th June 1966.
, Art. 98‑Person invoking writ jurisdiction must come to Court with clean hands‑Equitable jurisdiction cannot be exercised in favour of petitioner whose role has never been above board.
, Ss. 3 & 4 read with Sch., Part III, Para. 13 Acquisition of property to form compensation pool in terms of S. 4 for transfer in accordance with provisions of Schedule‑Locals and non‑claimants acquire no "vested" right in property in their possession by virtue of acquisition.
Rehmatullah v. Deputy Settlement Commissioner P L D 1963 S C 633 ref.
S. H. Jafari for Petitioner.
Muhammad Haleem, Assistant Advocate‑General for Respon dents Nos. 1 to 4.
Muftakhiruddin for Respondent No. 5.
Muhammad Yaqub for Respondents Nos. 6 and 8.
Respondent No. 7 in person:
Dates of hearing : 27th,' 28th and 29th July 1965.
.‑Abdul Wahid Khan, petitioner, invoking the constitutional jurisdiction of this Court under Article 98 called in question the various orders of the Deputy Settlement Commissioner, Quetta, detailed in the petition whereby some shops and plots situate on Anderson Road, Quetta, were transferred in favour of the respondents. A declaration in the form of writ of certiorari is sought to the effect that the orders were passed without lawful authority and were of no legal effect. A further relief by way of mandamus is also sought directing the Chief Settlement and Rehabilitation Commissioner to transfer the evacuee building site bearing Khasras Nos. 4398 to 4402 measuring 140' x 144' in his favour under Schedule as building site in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on prescribed rates.
2. It may be observed at the out‑set that this case presents a typical instance of tortuosity and protracted litigation in which although about dozens of orders were passed including those by three successive Custodians, and one by the High Court in writ jurisdiction, yet none of them could prove conclusive, ultimately, giving rise to the present Writ Petition after more than a decade's litigation. The background of the case which can be traced back to the partition may be given at some length.
3. The petitioner, who is a local resident of Quetta and a contractor by profession applied for the allotment of a vacant plot of land for reconstruction of shops in place of thirteen burnt shops on Anderson Road, Quetta bounded by Jamait Rai Street on the south, Abdul Sattar Road, on the east and Muhkam Din's Street on the north. This application was allowed by the Political Agent, Quetta, who was also the then Rehabilitation Commissioner, vide his order dated the 3rd April 1948, which read as follows:
"13 burnt shops may be allotted to Abdul Wahid, Contractor after an agreement has been executed."
(Sd.)
Rehabilitation
3‑4‑48 Commissioner, Baluchistan."
Ultimately on 26th of August 1948, lease deed Annexure E was executed between the Custodian of Evacuee Property Baluchistan as lessor and the petitioner as lease. The terms and conditions as detailed in the aforesaid lease deed briefly were that the monthly rent of the plot was fixed at Rs. 140 per mensum exclusive of Government and Municipal taxes, the lessee was allowed to construct shops with a total cost of Rs. 55,000 and the monthly rent was to be adjusted towards the costs of the construc tion which was to be carried out in accordance with a plan sanctioned by the Municipal Committee. The lease was to start with for a period of one year commencing from the 1st of October 1948, giving the lessor the discretion to extend it from year to year. On the adjustment of the lessee's total cost of construction, the shops were to revert to the lessor, the former having no interest, right or title whatsoever in the same. The lessee was given the option to sublet the shops and in case the lessor wished to take the property in question at any time before the adjustment of the cost of construction, he was to reimburse the lessee by paying the balance of his cost. The petitioner completed the construction of 25 shops on the site of 13 burnt shops in accordance with the approved plan with a cost of Rs. 55,000 as stipulated in the lease deed. On 28th of April 1952, he applied to the Custodian seeking permission to revise the plan with a view to allow him to raise some additional structure. This application was also allowed and the original cost of Rs. 55,000 was raised to Rs. 87,864 of course exclusive of the same which was to be adjusted in accordance with the terms and conditions of the lease deed.
4. On the 2nd of April 1953, the Government of Pakistan Ministry of Refugees and Rehabilitation, addressed letter No. F. II (18) (Annexure G') to the Rehabilitation Commissioner -cum‑Additional Custodian Evacuee Property, Baluchistan, laying down fresh policy and procedure for the allotment of evacuee plots (building sites) and sites of burnt houses in urban area of Baluchistan. The existing terms and conditions were liberalized. The new policy may be summarized, as follows: The allottees were required to deposit with the Custoian the market value of the plot as prevailing‑ in February 1952. The price was to be paid in six half‑yearly instalments which period could be relaxed from 3 to 5 years in hard cases. The existing allotments of evacuee plots were not to be renewed but allotment was to be made in case of those allottees only who had the means to construct suitable buildings within the, next six months and were also willing to pay the market value. Plots on which substantial structure had been put up were to be re‑allotted to the previous allottees provided they were prepared to pay the market value in six half‑yearly instalments. On payment of the market value, the allotment was to mature into virtual ownership, and an evacuee owner could take possession of the same, only if he were prepared to pay up the amount spent by the allottee on raising the construction in which case the allottee was to get the refund of the amount spent by him. Some suitable places were also to be reserved for public purposes and applications were to be invited by public notice stating the fresh terms and conditions.
5. It was on the 11th of December 1964, that in the light of the above policy of the Government, as contained in its letter (Annexure G) that a fresh lease deed copy (Annexure J) was executed between the Rehabilitation Commissioner, Baluchistan-cum‑Custodian Evacuee Property as Lessor and the petitioner as the lessee. Before reciting the stipulated terms and conditions, the lease deeds proceeded to give the situation, details, description of the plot along with the relevant Khasra numbers and the total area. The Khasra numbers mentioned therein were "4398, 4399, 4400, 4401 and 4402, measuring 1351‑11" on the East, 135' on the South, 121'‑9" on the West and 121'‑7" on the North, bounded on the East by Abdul Sattar Road, on the West by Shar‑e‑Liaqat Ali, on the North by the property of Om Parkash, Aisha Bibi, Abdul Karim and others, on the South by Jamit Rai Road, situated at the junction of Shar‑e‑Liaqat Ali and Jamit Rai Road, Quetta, total area 19,298 sq. ft. (excluding 430 sq. ft. of the area of 2 shops bearing Municipal Nos. 4‑2/27‑28 in Ward No. 9 of the Urban Circle Quetta Town, bearing Municipal No. 4‑2/5 to 4‑2/26 belonging to Balwant Sing, Mst. Tam Lubhai and Taj Bahadur Baldev Raj evacuee". It may be pertinent to observe in this context that the description and the Khasra numbers assumed special importance as it shall be presently seen in view of the confusion relating to the correct numbers of the plot allotted to the petitioner. The stipulated terms and conditions were that the petitioner lessee was to pay ground rent at the rate of eight annas per hundred sq. ft. per annum in addition to the price of the plot which was to be fixed by the Custodian, and was to be paid in six half‑yearly instalments extending over a period of three years. It was, however, open to the lessee to pay forthwith, the entire amount in lump sum. The lessee was not entitled to super‑structure' on the plot till such time as entire price of the plot was paid in full and that the construction already raised by the lessee over the plot in accordance with the plan sanctioned by the Quetta Municipal Committee at an estimated cost of Rs. 87,864 was duly approved by the Custodian. But in case the lessee failed to pay the full price of the plot within a stipulated period of three years from the date of assessment of price, the lessor reserved to himself the right to sell the super‑structure towards the realisation of the balance of arrears of premium and ground rent. It was open to the evacuee owner that to accept the price of the plot or to obtain possession of the plot together with the super‑structure thereon, provided he paid the lessee the total cost incurred by him, in which case the lessee was to be refunded the price of the plot deposited with the lessor. The period of the lease was not fixed and was to remain in force for an indefinite period.
6. What really seems to have set the ball rolling culminating in the present writ petition was a dispute between the petitioner and Muhammad Ali Gauri and Ghulam Nabi respondents 5 and 8 respectively. Of these, Muhammad Ali Gauri was present in person before us while Ghulam Nabi was neither present nor represented. The present petitioner contended that this site was included in the evacuee plot allotted to him by the Rehabilitation Commissioner‑cum‑Custodian Evacuee Property, Quetta on 3rd April 1948. The Rehabilitation Commissioner vide his order dated the 16th July 1953, confirmed the allotment in favour of Ghulam Nabi‑ respondent. , Abdul Wahid petitioner feeling aggrieved challenged in revision this order before Khan Qurban Ali Khan, the then Agent to Governor‑General and Chief Commissioner, Baluchistan, who dismissed it on 18th December 1953, (Annexure H). It is this order which seems to have laid the foundation for the several subsequent inquiries which were held from time to time in respect of the allotment of the petitioner, In paragraph 3 of this order, it was made clear that Abdul Wahid petitioner in his first application sought allotment of the side of 13 burnt shops belonging to Ram Piari Gurbakhsh Singh, The site disputed between Abdul Wahid petitioner and Ghulam Nabi respondent belonged to Tej Bahadur and Buldev Raj. It was next held that the boundaries as described by the petitioner in his application for allotment gave an erroneous impression as every bit of land within those boundaries also included some unidentified evacuee plots which obviously could neither be claimed by, nor allotted to Abdul Wahid. This is one of the impugned orders challenged in the present writ petition, but the claim of Ghulam Nabi respondent to shop No. 4‑2/27‑28 was conceded by the petitioner and we will advert to it a little later. What is more pertinent in this context is an observation made by the learned Agent to Governor‑General in the concluding paragraph of his order which is reproduced below:
"As a corollary to the finding given in this order, it is directed that the position of any evacuee property in possession of the petitioner, Abdul Wahid in excess of the thirteen burnt shops belonging to Ram Piari/Gurbakhsh Singh as allotted to him by Political Agent's order dated 3‑4‑48 should be examined, and that if he is found to possess anything in excess of that order the property so possessed should be reclaimed and allotment order if any, should be cancelled. Compensation if any is warranted should be given to him."
7. The second order in the same series which was based on the aforesaid observation of the A. G. G. was the one passed by Mr. Mansur Alam, Custodian Evacuee Property, Baluchistan dated the 1st of November 1955, whereby revision petition No. 157, Abdul Rahman v. Abdul Wahid ; Miscellaneous No. 116 of 1955, Muhammad Rafiq v. Abdul Wahid Khan and Miscellaneous No. 59 of 1955 Muhammad Ali Ghori v. Abdul Wahid Khan, were simultaneously disposed of (Annexure K). This order has also been challenged in the Writ Petition and in fact, is the first detailed and elaborate order running into five pages which not only gave the entire background of the case, but particularly high‑lighted the irregularities committed by the petitioner and encroachment made by him on evacuee land. The findings could be summed up as follows:
(1) that the petitioner started construction immediately after the allotment order was passed in his favour without taking any steps to execute the lease deed, which was executed on 26th of August 1948, i.e. about five months after the date of the allotment.
(2) that neither the original application filed by the petitioner nor the allotment order specified the area, the numbers or any other details regarding the 13 shops.
(3) that the boundaries given in the lease deed did not tally with the boundaries given in the application for allotment.
(4) that strangely enough the lease deed not only stated the municipal numbers but also stated the area covered by the lease, whereas these were not particularised in the application.
(5) that against the allotment of 13 burnt shops, the lease was in respect of 24 municipal limits, meaning 24 sites.
(6) that the second lease deed executed on 11th December 1954, contained terms and condition which were contrary to and different from the original lease deed dated the 26th of August 1948.
(7) that the Rehabilitation Commissioner‑Additional Custodian had come to the following findings:
"I am satisfied that Abdul Wahid Khan has not only managed to include an additional area in the agreement but "has actually capitalised on the allotment by covering it into a big business deal whereby he has carried out construction neither allowed by the allotment nor covered by the agreement."
(8) that strangely enough the same Rehabilitation Commis sioner in spite of giving effect to the appellate order of the A. G. G. for holding a fresh inquiry against Abdul Wahid Khan and resumption of area in excess of his allotment, had clearly by‑passed and had in fact, staged a volte face going back on his own finding, as contained in his order dated the 3rd of November 1954.
(9) that the Rehabilitation Commissioner had given a finding that the petitioner was not found in possession of any property not duly allotted to him or in the excess of his allotment in an order passed ex parte without issuing notice to the other parties, without holding a proper investigation.
(10) that this finding was given by the Rehabilitation Commissioner when the case was transferred to him by the Deputy Rehabilitation Commissioner‑cum‑Deputy Custodian at the instance of the petitioner himself without any ryhm or reason, as it was the D. R. C. who had been entrusted with the inquiry in the first instance in terms of the relevant orders of the A. G. G.
(11) that the petitioner was carrying on some further con struction on the unbuilt portion of the premises in question and had to be restrained by the Custodian.
(12) that there was no material on the record to fix the boundaries, the area and the specific numbers of the 13 burnt shops which were allotted to the petitioner.
(13) that the area of 140' x 144' claimed by the petitioner to be in his possession appeared to be too large to be comprised in 13 shops only and that Abdul Wahid petitioner had exceeded the limits of his allotment.
(14) that in order to arrive at a correct conclusion it was necessary to ascertain with reference to all available record and particulars of the 13 burnt shops allotted to him, and for this purpose an inquiry was necessary.
(15) regarding the terms of the second lease deed dated the 11th of December 1954, it was observed that the new rate of rent, i.e. eight annas per hundred square feet per annum substituted in place of Rs. 140 per annum had reduced the rent from Rs. 1,680 to about Rs. 100 (. . . . . sic) omission of the important position that after the adjustment of the petitioner's cost of construction be shall have no right, interest or title in the property, the Additional Custodian had practically made a free gift of the property to Abdul Wahid, by means of an unconscienable agreement of lease which had absolutely no justification.
8. In view of the above findings it was directed by the Custodian that a fresh lease deed on the terms and conditions of the first lease deed be substituted for the lease of 1954 and that a thorough enquiry should be held in regard to the exact dimensions of the thirteen burnt shops originally allotted to the petitioner and also whether he had used in the construction of the burnt shops any of the material lying on the plots in question. It was also to be determined how far the allegations against the petitioner having recovered over Rs. 16,000 as rent and Pugri from the tenants of the shops in question were correct, whether the petitioner had rendered himself liable to cancellation of the allotment for breach of conditions.
9. This order of Mr. Mansur Alam, Custodian, Evacuee Property, was challenged by the petitioner in the High Court through Writ Petition No. 7 of 1956 in which the cancellation of the lease deed dated the 11th of December 1954, and its substitution by a fresh lease deed was particularly impugned. It appears that in compliance with Mr. Mansur Alam's order dated the 1st November 1955, some enquiries were started by the Deputy Custodian Evacuee Property, Quetta, and the tenants of the shops in question were directed to deposit the rent in the Custodian's office instead of paying it to Abdul Wahid, petitioner. By the time the aforesaid writ petition No. 7 was filed in the High Court, Mr. Mansur Alam on his transfer was succeeded by Mr. Muhammad Bakhsh Memon, who was impleaded as respondent No. 1 in the Writ Petition. The written statement filed by him (Annexure L) clearly shows that he adopted a much softer attitude towards the petitioner and ordered the maintenance of status quo in respect of his possession of the disputed shops and stayed the order of the Deputy Custodian Evacuee Property directing the tenants to deposit the rent in the Custodian's office. He also passed an order for suo motu review of his predecessor's order dated the 1st of November 1955, which according to him had not attained finality, and was still subject to reconstruction. In the concluding paragraph 7 of this written statement dated 11th June 1957, Mr. Muhammad Bakhsh Memon made a prayer in the alternative that if the writ petition was not dismissed the hearing of the case be adjourned till the disposal of suo motu review by him.
10. The next order in the series, showing the ebb and tide of the petitioner's fortune in respect of the present case as highlighted by the unfavourable or favourable orders passed by the Custodian is the one passed in suo motu review by Mr. Muhammad Bakhsh Memon on 14th September 1957, under section 43 (6) of Act XII of 1957 against the order of his predecessors, dated the 1st November 1955, (Annexure M). It is for the first time that it is revealed in this order that the petitioner had in fact constructed 32 shops over the site of 13 burnt shops allotted to him by the Political Agent, Quetta vide his order dated the 3rd of April 1948, which did not disclose the area of site so allotted to him. It was held by Mr. Memon that the tenants of Abdul Wahid had no locus standi to challenge the title of their landlords, and his right to recover rent from them, and that he shall continue to recover the rent from them. It was next held that in case the tenants felt aggrieved by the demand of excessive rent, they could file applications to that effect. It was also indicated that since Abdul Wahid had put up construction of 32 shops he should not be disturbed in the interest of national economy, and that account could be settled with him with reference to the terms and conditions of the allotment. The more relevant portion of this order contained in the third paragraph is reproduced below:
"I have now heard the case and I think this is a matter which could be disposed of in one line. The custodian, the Rehabilitation Department, the tenants and every body else are clearly estopped from challenging at this stage the action of Abdul Wahid in putting up construction on the site that was allotted to him. He put up construction in broad daylight and no one challenged his action at that time."
In the end, expressing his incompetency to review the order of the learned Agent to Governor‑General, passed against Abdul Wahid on 18th December 1953, he set aside the order of his predecessor.
11. This order of Mr. Memon resulted in two eventualities, firstly, that Writ Petition No. 7 of 1956 filed by the petitioner against the order of Mr. Mansur Alam became infructuous and was presumably dismissed as having been withdrawn, and secondly feeling aggrieved by this order, Muhammad Ali Gauri respondent No. 5 an occupant of one of the shops in question No. 4‑2/18, filed a Writ Petition No. 47 of 1958, which was dismissed by Akhlaq Hussain, J. vide his order dated the 10th of November 1958. It would be relevant to refer to the following observations made by his Lordships at page 3 of the judgment.
"This seems to show that respondent No. I (Abdul Wahid Khan) was at all relevant times able to obtain from the Rehabilitation Department orders or actions most favourable to himself."
While referring to the order of Mr. Memon passed in suo motu review his Lordship observed as follows:
"It is not at all clear as to why and on what ground he deemed it proper to set aside the order of his learned predecessor. As already pointed, Mr. Mansur Alam had only ordered that an enquiry should be made if the respondent No. 1 was holding any area in excess of his original allotment and whether he had used any material of the burnt shops. There is not a word of Mr. Memon to show that this order of Mr. Mansur Alam was wrong or unjustified. There is also nothing in the order to show as to why he considered it proper to stop the inquiry which had already been ordered by the A.G.G. as far back as the 18th of December 1953, and has, for unknown reasons, been never made by any of the authorities concerned. It is interesting to note that Mr. Memon in the penultimate paragraph of his order clearly admitted that he did not possess the power to review the order of the A.G.G. passed on the 18th of December 1953."
While clearly holding that Mr. Memon had no jurisdiction to review the order of Mr. Mansur Alam, the learned Judge dismissed the petition on the ground that the petitioner had no locus standi inasmuch as, the impugned order had in no way injured his personal rights, and he being a lessee of the shop in question has to pay rent in any case, and it is immaterial whether he paid it to the respondent or to the Rehabilitation Department. It was held that the allotment order passed in favour of Muhammad Ali Gauri on the 9th of lay 1956, in respect of Shop No. 4‑2/18, could not have been "lade without first setting aside the allotment in the name of Abdul Wahid, and since the order dated the 9th of May 1956 had been set aside subsequently on 15th of May 1956, i.e. only a week later without being challenged, in appeal, it had attained finality. That being the only order which adversely affected the rights of Muhammad Ali Gauri and whereby he in fact felt aggrieved, he had no locus standi to file the writ petition which even otherwise had been filed after more than two years and a quarter, meriting dismissal and ground of laches.
12. Although, Muhammad Ali Gauri did not himself succeeded before Mr. Justice Akhlaque Hussain, but as would be abundantly clear from the foregoing observations of his Lordship, the case of the present petitioner who was respondent in that case appears to have been sufficiently damaged by some very pertinent observation of his Lordship, having a direct bearing on the instant case and which in all fairness cannot be ignored.
13. The next relevant order which deserves to be mentioned in this sequence is the one passed by the Rehabilitation Commis sioner, Quetta, dated the 4th of February 1960 (Annexure O), whereby he dismissed the revision petition of Muhammad Ali respondent and one Abdul Rehman, who respectively claimed the allotments of Shops Nos. 4‑2/18 and 4‑2/6 out of the shops constructed by the petitioner. Although these revision petitions had also failed like Writ Petition No. 47 of 1958, yet they likewise had gone a long way to damage the case of the petitioner, and the learned Rehabilitation Commissioner while holding on the one hand that the aforesaid shops were evacuee property gave a definite finding that the order of the A.G.G. dated the 18th of December 1953, had extinguished the rights of the petitioner over any shop found to be in his possession in excess of the thirteen shops belonging to Ram Piari Gurbaksh . Singh, A reference in this order was also made to the observations of Mr. Justice Akhlaque Hussain in his order dated the 10th of November 1958, wherein it was clearly stated that Mr. Amon had no jurisdiction to review the order of Mr. Mansur Alam. These findings thus clearly militated against the claim of the petitioner and the order in which they are contained is also one of the impugned order to this Writ Petition.
14. An interesting feature of this case is that the parties, particularly the petitioner and Muhammad Ali Gauri respondent, while invoking the jurisdiction of this Court simultaneously tried to avail of other legal remedies open to them. While Muhammad Ali Gauri on the one hand had challenged the order of Mr. Memon in a Writ Petition No. 47 of 1958, he simultaneously filed a review petition under section 43(6) of the West Pakistan Administration of Evacuee Property Act, of 1957, challenging the correctness and legality of the order of Mr. Muhammad Bakhsh Memon dated the 14th September 1957.
15. This review petition was considered in the first instance by Mr. A. M. Jan, the then Custodian at Lahore on 24th March 1959, when he passed the following order:
"Mr. Abdul Haq for the petitioner.
I would look into this case at Quetta on 5‑5‑59 and decide whether the delay in filing the petition can justifiably be condoned or in the alternative whether it is a fit case to review suo motu. Intimation may be sent to the petitioner at Quetta."
Unfortunately, Mr. A. M. Jan could not visit Quetta and owing to his sudden death, was succeeded by Mr. Masud Ahmed, as Custodian of Evacuee Property who dismissed Muhammad Ali Gauri's petition in default on 23rd November 1959. Muhammad Ali Gauri then filed an application for restoration of the review petition so dismissed but Mr. Masud Ahmed, J. the learned Custodian declined to restore the same as it had been filed beyond limitation. However, in order to further examine the points raised in the review petition before Mr. Masud Ahmed issued notices to the present petitioner before us in exercise of the suo motu powers to show cause why the order dated 14th of September 1959 should not be set aside. This order was passed by him at Quetta on 19th April 1960 and is Annexure Q on the file. Only a week later, i.e. on the 25th of April 1960 a detailed order Annexure S was passed by him on receipt of a notice and was represented by a counsel. The contention raised by his counsel was that since the evacuee properties have been acquired by the Central Government under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as such, the Custodian ceased to have jurisdiction in the matter. The conten tion was over‑ruled on the ground that at the time of the acquisition this was one of the pending cases before the Custodian which were excluded from the purview of the notification of acquisition. The learned custodian after reproducing the relevant portion of the order dated the 1st November 1955, passed by the then Custodian, Evacuee Property, Mr. Mansur Alam, whereby he had directed the institution of fresh inquiry in the case of the petitioner and had cancelled the lease deed of 1954, upheld the same and reiterated the view expressed by Akhlaq Hussain, J. in Writ Petition No. 47 of 1958, saying that Mr. Memon was not justified in setting aside the order of Mr. Mansur Alam. In the result he set aside the order of Mr. Memon and further directed the Deputy Custodian, Quetta that a thorough enquiry should be held in regard to the exact measurements of the area covered by 13 burnt shops originally allotted to the petitioner, and submit the report by the 1st of July 1960. This is yet another impugned order whose legality and correctness has been questioned in the writ petition.
16. Major T. H. Naqvi, to whom the enquiry had been entrusted could not submit his report earlier than the 7th of January 1963 (Annexure T) for the reason that the aforesaid order of Mr. Masud Ahmed, Custodian Evacuee Property dated the 25th of April 1960, was challenged by the present petitioner though Writ Petition No. 72 of 1962. This writ petition called in question not only the order of the Custodian dated 25th April 1960 (Annexure S) but also that of the Deputy Settlement Commissioner whereby he provisionally transferred some shops to the respondents. The Writ Petition was dismissed by, a a Division Bench consisting of Waheeduddin Ahmed and A. S. Faruqui, JJ, of this Court on 29th of May 1962. This judgment was written by Waheeduddin, J. and is Abdul Wahid Khan v. Custodian Evacuee Property (P L D 1962 Quetta 72). It would be pertinent to reproduce the following observations made by their Lordships:
"The number of documents placed on the record confirms our view that the petitioner is not only in possession of much more area than what was allotted to him but has also managed to obtain a lease in the year 1954 the terms of which are such which fully justify the observations of Masud Ahmed, J. that the officer concerned who executed this lease deed had made a free gift of the property in dispute to him."
In an answer to the question of estoppal, their Lordships observed that:
"The question was raised from time to time in the years 1952, 1953 and 1954. The department at no stage made any repre sentation to the petitioner on account of which he changed his position and had thereafter taken a different attitude which had harmed the interest of the petitioner in the property in dispute. On the other hand the petitioner even after the decision of the Rehabilitation Commissioner in the year 1953 that he is in occupation of much more are than what was allotted to him continued to raise constructions on the property in dispute. It, therefore, does not lie in the mouth of the petitioner to urge before us that the department is in any way estopped to dispute his right to remain in possession of the excess area which was not allotted to him."
While referring to the second lease deed of the year 1954, it was observed:
"It must have been noticed that in the year 1954 the Deputy Custodian, Quetta, without the approval of the Custodian or any other higher officer of the Rehabilitation Department executed a fresh lease‑deed in favour of the petitioner. The terms of this lease‑deed are such which no reasonable person having any responsibility to the department could agree in the circumstances of the present case."
In answer to the contention of the learned counsel for the petitioner that the Custodian had transgressed his power to review under section 43 (6) of Act XII of 1957, which were be exercised on the principles laid down in Order XLVII; rule 1, C. P. C., it was observed:
"The power of review vested in the Custodian under the above‑mentioned provision of law are unlimited and it is open to him to review any order of his predecessor or of his own if the justice of the case so requires."
Furtheron, their Lordships went on to say:
"It is absolutely clear to us that neither Masud Ahmad, J. disregarded any provision of law in reviewing the order of Muhammad Bux, J. nor did he in any way exceed his power of review in setting aside that order, we cannot, therefore, hold that the impugned order suffers from any illegality, in this respect. We, therefore, hold that the impugned order is absolutely valid and no exception can be taken to it."
We have no hesitation in saying that we are in respectful agreement with the finding given by our learned brothers about the validity of the order of enquiry passed by Mr. Masud Ahmad, J., reviewing the order of his predecessor in office, Mr. Muhammad Bua Memon, J. Before parting with this judgment we feel tempted to reproduce yet another observation of their Lordships which had a direct bearing on the case:
"It seems to us that the petitioner is unnecessarily wasting his time in pursuing his remedy before this Court. Even if the petitioner has occupied more area than , what was allotted to him under the Compensation, Act he is entitled to get the property in his possession on payment of the market price of the land in dispute and on payment of certain penalties. There is another difficulty also in the way of the petitioner. In order to determine his rights in. respect of the property in dispute it is essential for him to get the inquiry ordered by Masud Ahmed, J. to be concluded. On the result of that inquiry alone it would be clear what property was allotted to him and what area of the land is in his legal possession. This inquiry will further show the liabilities of the petitioner in respect of the rent due from him: So long as this inquiry is not concluded the ‑property in dispute will remain an evacuee property and the petitioner also will not be entitled to claim the property in settlement under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958."
17. Reverting now to the report of 'Major T. H. Naqvi, the findings given by this officer may be summarised as follows:--
(i) On the question whether the petitioner had utilized some building material lying at the spot, it was found that there was no evidence to show that there was any evacuee material lying at the site which could have been utilised by the petitioner, and that the shops appear to be built with new material.
(ii) On the point whether the petitioner had already realised huge amounts from the tenants by way of rent and Pugri, it was found that no evidence was available to support the allegation Regarding the monthly rent it was stated that the petitioner was charging rent up to Rs. 50 per shop, when it was restricted by the Civil Judge in 1951.
(iii) On the pivotal point whether the petitioner had made any encroachments or had grabbed area in excess of his allotment, it was observed as follows:
"My inquiry reveals that the area in possession of Mr. Abdul Wahid Khan at present comprises of 23 shops numbered 4‑2/5 to 4‑2‑/28, Khasra Nos. 4398, 4399, 4400, 4401 and 4402. This obviously is, more than the burnt area of 13 shops. It cannot be, however, ascertained at this stage as to what was the actual area of 13 burnt shops site in 1948. However, the actual area under which these shops have been built is 140 x 144 feet. This area actually is even more than the actual 23 shops already built. There is some portion in on which half constructed structure also exist. The area was under construction when the proceedings against Abdul Wahid Khan were started and he was ordered to stop construction till after the inquiry was completed. It cannot be definitely ascertained but it appears that there were some store houses attached to these 13 burnt stops or un‑open space with each shop, as usually exist with most of the shops in Quetta. Presumably this area comprising of store houses or open space was also constructed by the lessee, which enabled him to construct 23 shops in place of 13 burnt shops still leaving some portion on which he was building a Musafir Khana."
In view of the above finding Major Naqvi recommended that the "petitioner should be transferred the actual area in his possession on payment of average auction price plus 50 % more for the area in excess of his allotment and prevailing market price for the area validly allotted to him in 1948". It was suggested that there was no necessity of executing a fresh lease deed.
18. On receipt of this report, Mr. A. R. Changez, J. who had succeeded Mr. Masud Ahmed, J., as Custodian forwarded the report to Mr. Shamshad Hussain Zaidi, Additional Custodian (Judicial) Evacuee Property, Hyderabad and Khairpur Divisions for further verification and' comments in the presence of the parties. Mr. Zaidi submitted his detailed comments vide his report dated 21st of May 1963 (Annexure U). To start with this report he referred to the objection of Ghulam Nabi respondent occupant‑transferee of shops Nos. 4‑2/27‑28, that Major Naqvi never personally inspected the spot nor gave him any hearing before the actual report. He then proceeded to give the details of 4the‑ built area and observed that the total number, of shops was 25 and. not 23 as reported by Major Naqvi. It was next observed that it was doubtful if such a construction was within the ambit of the allotment or the lease deed. In paragraph 10 of his report he upheld the contention of Ghulam Nabi respondent in respect of his claim to the occupation and transfer of shops Nos. 4‑2/27‑28 on the ground that they were quite apart from the shops built by the petitioner; being separated by a lane and actually stood on Khasra No. 4402 and further that the material used by them and the type of the construction were also different and distinguishable, and that the counsel for the petitioner did not contest and rather conceded the position in respect of these two shops. In so far as shop No. 4‑2/18 in possession of Muhammad Ali Gauri was concerned, it was held that the same had been allotted and transferred to him. On the question of rent realised by the petitioner, the inquiry of Mr. Zaidy revealed that he was approximately collecting Rs. 695 per month in respect of the shops in question and the original investment of Rs. 55,000 having stood fully adjusted, it was recommended that he should not be considered entitled to the transfer of the shops, and at any rate at best he could be considered at par with other claimants for the disposal of this property.
19. We now come to the last order dated the 20th of December 1963, of the series passed by Mr. A. R. Changez, J, who had succeeded Masud Ahmed, J. as Custodian, Evacuee Property, West Pakistan (Annexure V). It is purported to have been based and to be read in continuation of the order of Mr. Mansur Alam, the then Custodian dated the 1st of November 1955, though made after an interregnum of eight years, on the finalization of the inquiry ordered by Mr. Mansur Alam. The conclusions arrived at by Mr. A. R. Changez may be summarized as below:
(1) It was held that the shops Nos. 27‑28 claimed by Ghulam Nabi were not included in the shops constructed by the petitioner.
(2) That the lease in favour of the petitioner was terminated.
(3) That an arrears of rent to the tune of Rs. 25,200 had accumulated against the petitioner which shall have to be adjusted against the sum of Rs. 55,000.
(4) The petitioner was held entitled to the balance of Rs. 29,800 for the full adjustment of his investment of Rs. 55,000 which was to be paid to him from the compensation pool.
(5) On payment of this amount, the premises as it stood on the site could be utilized by the Settlement Authorities.
(6) In the concluding lines it was observed:
"The claim of Abdul Wabid Khan to the property may be favourably considered by the Chief Settlement and Rehabilitation Commissioner. A copy of this order may be sent to him for taking necessary action."
19. The present writ petition was filed by the petitioner on the 25th of June 1964. Respondents 5 to 8 were impleaded because a portion of the plot and shops claimed by the petitioner were allotted to them. During the pendency of these proceedings shop No. 4‑2/18 was transferred by the Rehabilitation Authorities, to respondent No. 5, Muhammad Ali Gauri. Plot comprising Khasra No. 4399 was allotted to Mir Ahmed Shah, respondent No. 6 on which the petitioner claims to have constructed shops No. 4‑2/6‑13. A portion of plot bearing Khasra No. 4402 was allotted to Ghulam Nabi respondent No. 8, plot bearing Khasra No. 4098 was transferred to Lal Din, respondent No. 7. On a portion of this the petitioner claimed to have constructed shop No. 4‑2/5, These transfers in favour of the respondents were made in the year 1960, during the pendency of the proceedings and PTOs and PTDs have also been issued in their favour. The petitioner has prayed, firstly by way of writ of certiorari, that all these orders of transfers and other referred to earlier are without lawful authority and of no legal effect and secondly, by way of a writ of mandamus directing the Rehabilitation Authorities to cancel the PTOs and PTDs issued in favour of the respondents.
20. The main contention raised by the learned counsel for the petitioner was that properties in respect of which some proceedings were pending at the time the notification for acquisition was issued were excluded from its purview and as such not be deemed to have been acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958. The property in question definitely falling in this category stood excepted and as such the Rehabilitation Authorities were not competent to include it in the Rehabilitation Pool or transfer it to the respondents, and that these should have been disposed of under para 13 of the Schedule to the Act XXVIII of 1958, read with scheme No. VI according to which the petitioner was alone entitled to their transfer. It was urged that the petitioner's P' form in respect of the property in dispute was still pending and not disposed, and that in any case, the structures were raised by and belonged to the petitioner and being his personal property should not have been transferred to any body. It was also contended that the orders of transfer in favour of respondents having been passed in the absence of the petitioner and behind his back were void. .
21. Before proceeding to determine the merits of the contentions raised by the learned counsel for the petitioner, it might be observed that while narrating the entire background of this multifarious and protracted litigation, we have tried to highlight the relevant facts and findings as given by different authorities from time to time. In so far as the competency of Mr. Masud Ahmed, J. to review the order of Mr. A. M. Jan is concerned, this controversy has been completely resolved and set at rest by an elaborate judgment of Waheeduddin and A. S. Farqui, JJ. in Writ Petition No. 72 of 1962 with which we are in respectful agreement. That judgment was delivered in the course of the same litigation on some of the points now being re‑agitated before us.
Mr. Muhammad Yaqub Khan represented 22. Mir Ahmed Shah respondent No. 6 and Ghulam Nabi respondent No. 8, Advocate. The case of Ghulam Nabi is quite simple. He was never impleaded by the petitioner in any of the previous, pro ceedings instituted by him since the year 1948. Out of Khasra No. 4402 measuring about five thousand square feet, only 1,170 sq. ft. were transferred to respondent No. 8, on the basis of his P' form. The shops in question were built by him on this site as is clear from the relevant reports of the Rehabilitation Authorities (Annexures T and U), confirmed by the order of Mr. A. R, Changez, J. This position was frankly conceded by the learned counsel for the petitioner and as such, to this extent the petition stands disposed of.
23. Before proceeding to consider the contention raised by the learned counsel for the petitioner, we would like to refer to the position taken by the learned Assistant Advocate‑General, who represented the Custodian Evacuee Property and Rehabilita tion Authorities, respondents 1 to 4. It was contended by the learned A. A.‑G. that the petitioner being a local having no vested right in the property in question could not invoke the writ jurisdiction of this Court as his rights and interest in the property were governed by the terms and conditions of lease deed, Annexure E and it was clearly stipulated therein that when the petitioner's cost of construction would be adjusted, he shall have no right in the property, which shall revert to the Custodian, and since by the final order of the Custodian dated the 20th of December 1963, the lease was not extended, the petitioner was only entitled to the receipt of Rs. 29,800 after making out of his total cost of Rs. 55,000 which had accumulated as arrears of rent against him. Reliance was placed in this regard on P L D 1963 S C 633. As regards the transfers in favour of respondents, placing reliance on Rahim Bakhsh v. Ahmed Bakhsh (P L D 1964 S C 189) it was conceded that they were not valid. Lastly, it was argued that the final order passed by A. R. 'Changez, J., dated the 20th of December 1963, was a perfectly legal and valid order, whereby the Custodian had fully honoured his commitment to make adjustment for the petitioner's cost of construction, although it had been clearly established that he had already earned more than that he had spent by way of rent and pugri.
24. Mr. Muhammad Yaqub Khan, the learned counsel for Mir Ahmed respondent No. 6 and Ghulam Nabi respondent No. 8 before coming to the merits of the case of his clients of whom the case against Ghulam Nabi was not pressed by the petitioner, but was rather conceded, strenuously argued that the petitioner on account of his conduct and having suppressed the relevant and important facts in the case was not entitled to any relief in exercise of the equitable and discretionary writ jurisdic tion of this Court, and for this reason alone, the Court should refuse to interfere and straightway .dismiss the petition. In support of this, it was argued that a Division Bench of this Court, dismissing the petitioner's Writ Petition No. 72 of 1962, reported as P L D 1962 Quetta 72, had directed him in the first instance to approach the Settlement Authorities for the adjudication of his rights in respect of the properties in dispute and also get the inquiry concluded against him, as ordered by Masud Ahmed, J. But on the contrary, the petitioner flouted this discretion and chose to file the present writ petition. It was further argued that while doing so, he suppressed some very important and relevant facts, in particular the proceedings initiated by him against Ghulam Nabi for the recovery of rent, wherein he failed throughout, at the trial in the first instance, and before the District Judge, and the High Court subsequently in appeal and revision respectively. The application for review as well as under Clause 10 of the Letters Patent was also dismissed. The relevant orders in this regard are Annexures 4 to 8, and none of these facts had been mentioned even in passing in the present writ petition. Lastly, it was argued that although he had no semblance of a claim to the shops of Ghulam Nabi No. 4‑2/27‑28 and was constrained to concede this position he had nevertheless unnecessarily harassed and embarrassed him by dragging him into endless litigation. Reference was made in this regard to Annexure 10 which is a copy of an order of Mr. Justice A. R. Changez, J., dated the 28th of August 1963, of which the concluding paragraph may be reproduced with some advantage:
"As regards shops 4‑2/27‑28, the learned counsel has stated on instructions from his client that he had no claim with regard to those shops. I am given to understand that these two shops have already been transferred .to Ghulam Nabi and, therefore, he did not even appear in this case."
25. We consider it appropriate to deal with this contention of Mr. Muhammad Yaqub Khan in the first instance. It is a settled principle of law and equity that a person invoking the equitable jurisdiction of the Court should come with clean hands. Anybody whose own role is not above board should not be allowed to invoke this discretionary jurisdiction. We are convinced that the conduct of the petitioner from the very out‑set has rather been dubious and shady. To be rich and farsighted in the matter of investment is no disqualification to be disparaged or looked down upon, but unscrupulously extracting unlawful gain by procuring illegal orders is certainly an indefensible and unenviable conduct to be frowned upon. We have no doubt that the hands of the petitioner instead of being clean are pretty soiled. In the first instance, he deliberately declined to give in his first application for allotment the exact details of the area and measurements of the thirteen burnt shops. Being a moneyed man he hastened to raise construction before even executing a lease deed and forced upon the department a fait accompli. While so trying to fish in troubled waters he fully exploited the confusion so cleverly created by him by not specifying the area and grabbed much more than was allotted to him as was fully established during the course of two inquiries held in turn by Major Naqvi and Mr. Zaidi in this regard. The substitution of the first lease deed by the second, particularly the conspicuous omission of the most important clause that on the adjustment of his investment by the payment of rent, he shall cease to have any interest, claim or title in the premises, coupled with the reduction of the annual rent from Rs. 1,600 to Rs. 100 was rightly described by Messrs Mansur Alam and Masud Ahmed custodians as amounting to a free gift of a very valuable property to the petitioner. The volte face staged by the Rehabilitation Commissioner and the concessions made by Mr. Memon in his written statement as respondent in Writ Petition No. 42 of 1953 and his subsequent order reviewing to order of Mr. Mansur Alam were certainly acts having no legal sanction behind them, and were rightly criticised by his successors. Again, the petitioner successfully manoeuvered to delay an inquiry ordered, by Mr. Mansur Alai on 1st November 1955, for eight. years by filing appeals, revisions and writ petitions. Having clearly conceded before the Rehabilitation Commissioner Mr. Zaidi and A. R. Changez, J. on different occasions that shops Nos. 4‑2/27‑28 were quite separate and apart from those constructed by him, he again impleaded their transferee Ghulam Nabi respondent No. 8. In these circumstances, we find it difficult to, pursuade ourselves to interfere in exercise of our equitable writ jurisdiction in favour of the petitioner.
26. Even otherwise, he has no case on merits either. He was forced to take inconsistent positions before the Custodian and this Court. The jurisdiction of the former was challenged on the ground that the properties stood transferred to Central Government after acquisition, and as such, the Custodian had no jurisdiction to pass the impugned order. On the contrary, it was argued before us that the transfers in favour of the respondent could not be made as these properties being subject‑matter of pending litigation had been excluded from acquisition were not included in the Rehabilitation Pool.
27. His claim to the transfer under paragraph 13 "Building Sites" of Schedule to the Displaced Person (Compensation and Rehabilitation) Act, 1958, is equally untenable. Admittedly the properties in question were not acquired by the Central Govern ment as they were exempted owing to the pendency of litigation about them vide category No. (III) mentioned in Notification No. U‑8‑79/3113, dated the 21st of August .1961, and as such were not included in the compensation pool. Consequently the Custodian Authorities were fully competent to deal with this property and pass the impugned order. The learned counsel for the petitioner while claiming transfer of the premises in question has relied on sections 10 and 16(1)(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It would be advantageous to reproduce these provisions:
"Section 10. Power to transfer property from the com pensation pool.‑(1) Subject to the provision of this Act and the rules made thereunder, the Chief Settlement Commissioner or any other authorised in this behalf b y him may transfer or dispose of any property out of the compensation pool on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule."
"Section 16. Payment of interim compensation to certain persons, etc.‑‑(1) Subject to the provisions of this Act and the rules made thereunder, the Central Government may, by order in writing, require the Chief Settlement Commissioner or any other officer specially empowered by the Central Government in this behalf to prepare, in anticipation of the settlement of claims one or more schemes:
(a)----------------------------------.
(b) for the transfer of immovable property on evaluation or otherwise to claimants, non‑claimants or locals in accordance with the provisions of the Schedule; or
(c)------------------------------------
Both these sections refer to the. Schedule appended towards the end of the Act. Paragraph 13 of the Schedule reads that
"13. An evacuee building site which has been :‑
(1) .-------------------------------------------------
(2) allotted to a non‑claimant displaced .person or local on which a permanent building has been constructed by him shall: be transferred to him on payment of the market price prevailing at the time of allotment;
(3) In unauthorised possession of any person and that that person has constructed a permanent building on it, then the site shall be transferred to that person on payment of the prevailing market value plus fifty per cent. of such market value.
Provided that no such additional price shall be charged if that building site forms part of an area on which displaced persons have raised a number of permanent houses, dwellings or shops so as to form a cluster of colony."
The relevant scheme for the disposal of building sites prepared under section 16 (1) (b) and (c) of the, Displaced Persons (Compensation and Rehabilitation) Act, was published on 13th November 1959, laying down the procedure. The expression Building Site' as defined in paragraph 1 (2) of Chapter I of the Scheme means:
"Any evacuee plot of land acquired under section 3 of the Act, which was vacant or free from any permanent construction at the time it became evacuee property and is not within a well‑defined compound of a permanent building and shall include,
(a) a site on which the permanent construction, if any, put up by the evacuee owner does not exceed in area 1/8th of the site;
(b) any site on which a building after it became evacuee property was completely demolished by floods, fire, incendiarism or any natural calamity, whether or not any construction has subsequently been raised on it."
From the above it is abundantly clear that the Scheme related to the disposal of only such building sites as had been acquired under section 3 of the Act from which the premises in question stood exempted. In the circumstances, the petitioner could not press into service the provisions of Scheme No. VI seeking transfer of the disputed premises, and he was only to be governed by the terms and conditions of the lease‑deed, which have been fully honoured in the last impugned order, whereby full adjustment of the expenditure incurred by the petitioner in raising the construction had been directed.
28. Although according to the calculations of Major Naqvi reaffirmed by Mr. Zaidi, the petitioner had already realised more than he had spent, the final order passed by A. R. Changez allowing the petitioner Rs. 29,800 by way of adjustment before taking over the premises is only too fair and just and even liberal whose legality is simply unassailable. Similarly the correctness and legality of the orders passed by Mr. Mansur Alain and Masud Ahmed, J. and the untenability of one passed by Mr. Memon have been fully established by the Division Bench Authority P L D 1962 Quetta 73. It would also be pertinent in this regard to make reference to some of the observations made by their Lordships of the Supreme Court in Sh. Rehmat Ullah v. Deputy Settlement Commissioner, Centre A and others which in our view are quite relevant to the instant case. This was an appeal by Special Leave by a non‑claimant displaced person seeking transfer of a shop in his possession. Although Kaikaus J. taking a contrary view from the one unanimously taken by the other learned Judges, had observed that the provisions in the Schedule relating to the transfer of property were mandatory and the property in possession of a local or non‑claimant refugee must be transferred to him, the majority view was that a non‑claimant displaced person not being included among the specified, beneficiaries under the Act could not claim any right in the property included in a compensation pool and could not be deemed to acquire any vested right as a beneficiary by virtue of c section 4 of the Displaced Persons (Compensation and Rehabilita tion) Act. It was observed by Cornelius, C. J. who delivered the judgment as follows:
"I am therefore led to the conclusion that a vested beneficiary interest in the property in the compensation pool can only be allowed, once the pool is constituted, or any property passes into the pool, in favour of claimants."
In the penultimate paragraph of the judgment, it was observed by his Lordship as follows:
It is, therefore, in my opinion, not unreasonable to conclude that if in a case, such as the present the Central Government acts by notification to exclude certain items of property from the purview of a notification of acquisition under section 3, the consequence is not that the property become the property, of no one, but must be that its earlier status as evacuee property is restored, and it thereafter again comes within the jurisdiction of the Custodian."
29. For the foregoing reasons, we see no force in this petition which is dismissed with costs.
K. B. A. Petition dismissed.
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