Find a Lawyer

Constitutional Petition No.D-840 of 1980, decided on 3rd April, 1984.

--S.10 & 11--Evacuee Property and Displaced Persons(Repeal) Ordinance (XV of 1974), S.2(2)--Evacuee Property and Displaced Persons (Repeal) Act (XIV of 1975), S.2(2)--Civil Procedure Code (V of 1908), O.XXIII, r.3--Constitution of Pakistan (1973), Art. 199--No proceedings in respect of claim of petitioner pending on day of promulgation of Ordinance XV of 1974 or Act XIV of 1975 or on date of enforcement of said Act and petitioner receiving money as a consideration for relinquishment of all his rights and interest claimed by him in land in question in favour of vendee and a compromise order issued by High Court--Petitioner after making said settlement still having a balance of unutilised P.I. Units for which petitioner neither requesting Settlement Department nor pursuing matter further till Act XIV of-1975 promulgated--Petitioner, held, could not claim that his case was a pending proceeding--High Court would decline to issue mandamus in favour of petitioner who had himself been guilty of omission or negligence for a long period.

---Art. 199--Writ of Mandamus--Conditions precedent to issuance of mandamus stated--Petitioner failing to satisfy conditions and failing to show that he had a clear right to performance of duty by respondent- Petition for issuing writ of mandamus dismissed.

Hindu General Panchayat (Regd.) v. Government of Sind and 21 others1984 C L C 503 rel.

Akhtar Mahmood for Appellant.

Syed Sarfraz Ahmed, Asstt. A.-G. for Respondents.

Date of hearing: 3rd April, 1984.

.--The petitioner through this petition has prayed for the following reliefs:----

It is, therefore, respectfully prayed that this Hon'ble Court may be pleased:---

"(a) To declare that the order passed by the first respondent mentioned in his letter, dated 2-4-1980 issued to the Applicant by the Settlement Commissioner, Karachi (X-II) and/or any other order or orders passed in pursuance or implementation of the same are orders passed without lawful authority and of no legal consequence;

(b) to declare that the petitioner is entitled to the satisfaction of his remaining 1202 P.I. Us. against allotment /permanent settlement of agricultural land anywhere in the Province of Sind under the provisions of the displaced Persons (Land Settlement) Act, 1958 read with section 2(2) of the Repealing Act XIV of 1975 and that a direction may be issued to the respondents to act according to law in this behalf;

(c) to award costs of these proceedings; and

(d) to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of this case."

2. The brief facts leading to the filing of the above petition are that the petitioner is a claimant displaced person. He received M.R.V. on 26-9-1961 in respect of 2310 P.I. U. The Petitioner was issued a Khatoni on 30-12-1961, and that an area of 26.19 acres was allotted/ permanently settled upon the applicant in village Burhan in Hyderabad district against the adjustment of 1108 P. I . U . , thus leaving a balance of 1202 f.I. U. It seems that the Settlement Commissioner, Karachi, by his order, dated 26-4-1962, directed the Settlement Authorities, Karachi, to allot certain land in Deh Gujru, Taluka and District Karachi, to the petitioner, whereupon Survey Nos. 212 (10.15), 213 (15.16), 214, 215, 216, 218 and 220, totalling 35.3 acres were allotted /permanently settled upon the applicant against his 854 P.I.U.,, while leaving a balance of 348 P.I,U. to be utilised. It is the case of the petitioner that the confirmed Khatoni was issued in respect of the above land on 12-5-1962, and his name was entered in the Revenue record, including R.L.-II. It further seems that the Chief Settlement Commissioner, by his notification, dated 3-9-1963, declared the lands in Deh Gujru and other villages in Karachi to be covered by Scheme No.V, or, as a building sites. The petitioner being aggrieved by the above notification, filed Constitutional Petition No.395/1966, which was dismissed by an order, dated 15-3-1971 passed by a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, Karachi. The petitioner against the above order- filed L.P.A.No.75/1971. It may be stated that, by this time, the aforesaid lands were sold by the Settlement Department in favour of Bantva Memon Co-operative Housing Society Ltd. The above L.P.A. was dismissed as withdrawn in pursuance of the order, dated 30-12-1978, upon an application under Order XXIII, rule 3, C.P.C. filed by the petitioner and Bantva Memon Co-operative Housing Society Ltd., though to the above L.P.A.; the Deputy Secretary (Rural), Lahore, and the Assistant Settlement Commissioner and Mukhtiarkar, Karachi, were parties as respondents Nos. 1,2 and 3, but they had not signed the compromise application.

3. It may be advantageous to re-produce below the above compromise application and the order passed thereon.

"APPLICATION UNDER ORDER XXIII, RULE 3, C.P.C.

It is submitted on behalf of the appellant and respondent No.4 that the above matter has been settled as per agreement (copy of which is annexed herewith) between the Appellant and the respondent No.4 of which the following are the main terms and conditions.

(1) That the Bantva Memon Co-operative Housing Society Limited (Respondent No.4) shall pay to Anis Ali Khan (the appellant s sum of Rs.3,80,000 (Rupees three lacs and eighty thousand only) out of which a sum of Rs.1,00,000 (Rupees one lac only) through Pay Order No.C-177784, dated 1st January, 1979 of National Bank of Pakistan, Karachi and Rs.30,000 (Rupees thirty thousand only) in cash, has been paid today in Court to Ants Ali Khan anti he acknowledges receipt of the same. The balance of Rs.3,50,000 (Rupees three lacs fifty thousand only) shall be paid by the respondent No.4'to the Appellant (Anis Ali Khan) against receipt before 31-1-1979.

(2) That the Appellant hereby relinquishes in favour of the respon dent No.4 all his rights and interest claimed by him in the land in question bearing Survey Nos. 213, 214, 215, 216, 218, 219, and 220 Deh Gujro Tappo Songal, Tehsil and District Karachi.

(3) That the Produce Index Units of the Appellant utilised by the Settlement Department against the allotment of the lands mentioned above now stand released and the Appellant, without prejudice to the interest of respondent No.4 in these lands, shall be free to utilise them according to law.

(4) That the Appellant hereby withdraw the above appeal with no order as to costs.

Prayed that on the above basis the above appeal may be disposed of with no order as to costs."

ORDER DATED 30-12-1978.

ORDER.

Mr. Akhtar Mahmood, Advocate.

Mr. Nasir Aslam Zahid, Advocate.

Mr.Shafique Ahmad, Advocate.

Mr. Badar-ud-Duja, Advocate.

30-12-1978. The appellant and respondent No.4 have settled the matter outside he Court. The appellant Ants Ali Khan who is present admits receipt of Rs.1,30;000 (Rupees one Lac) by Bank Pay Order and Rupees thirty thousand in cash. Pit' Muhammad and Rehmatullah, respectively the Chairman and Secretary of Bantva Memon Co-operative Housing Society are present in person and they state that they have by the settlement bound themselves to pay a further sum of Rs.2,50,000 (Rupees two lacs fifty thousand) to the Appellant Ants Ali Khan before 31-1-1979.

The appellant wishes to withdraw this appeal and has relinquished his right and interest in the land described in the paragraph No.2 of the application for withdrawal of this Appeal.

The parties request that this appeal may be kept pending until 1-2-1979 by which date the appellant should notify in the office of the amount is paid and in case he does so notify, this appeal shall stand dismissed as withdrawn without any orders of the Court.

The parties shall bear their own costs in such case.

The respondents Nos.1, 2 and 3 are not contesting this appeal for the reason that they are pro forma respondents pleaded only because they had passed certain orders in regard to the matter in dispute in official capacity. The order of withdrawal of this appeal operate against them as well.

The appellant and Mr. Akhtar Mahmood do not press C . M . A . 532/1978. On a reading of the application we find that contested question of facts would arise and in jurisdiction under section 3 Contempt of Court Act, the power of punishment will not be lightly used in such cases. This application is also dismissed."

It seems that the Petitioner had filed an application under section 152, C.P.C. (C.M.A:No.270/79) for the amendment of the above-quoted order on the ground that para. 3 of the compromise application was not reflected in the above order. The above application was disposed of by an order, dated 6-10-1979, by a Division Bench of this Court, in which it was observed that "In the above circumstances it would be sufficient if it is clarified that our order of dismissal of appeal should be read subject to abovementioned paragraph 3 of the compromise application of the parties, reproduced hereinabove, since all the parties to the appeal had agreed for its disposal in terms of the compromise application".

4. It is the case of the Petitioner that, after the above order of the High Court passed in the aforesaid L.P.A., he approached the Settlement Commissioner through an application, dated 16,7-1979 for the allotment of land against the 1202 P. I. U., which request was rejected by the Settlement Commissioner by his order, dated 31st July, 1979, on the ground that by virtue of section 3 of Act XIV of 1975, all lands available on 1-7-1974 or which may become available thereafter stood transferred to the Provincial Government. It was observed that since neither there is a compensation pool nor any agricultural land included therein since 1-7-1974, the Member of Board of Revenue may consider to permit the applicant to file application for satisfaction of his units in the form of bonds by condoning the delay. After that, he made a representation before the Member of the Board of Revenue, which was disposed of by an order, dated 19-12-1979 and the case was remanded to the Settlement Commissioner, Sind, for further action after re-examin ing the observation of the High Court of Sind and the law in force. Thereupon, the Settlement Commissioner by his letter, dated 2nd April, 1980, after obtaining the opinion of the Law Department, Government of Sind, with the approval of the Member of the Board of Revenue, informed the Petitioner that the Member of the Board of Revenue had already been pleased to allow him to file the required C.P.11(Land) application for satisfaction of the unsettled units through promissory bond Vide the Settlement Commissioner's above letter No.DSC/Land/ KP/74-380, dated 16-8-1979. The petitioner being aggrieved by the above orders, has filed the present petition.

5. In support of the above petition, Mr.Akhtar Mahmood Khan, learned counsel for the petitioner, has urged that the Petitioner's case was saved by subsection(2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (hereinafter referred to as the Act), and therefore the petitioner is entitled to the allotment of land against the above un-utilized 1202' P.I.U. On the other hand, it was urged by Mr.Syed Sarfraz Ahmed, learned Assistant Advocate General, on behalf of the respondents, that neither any proceedings were pending before the Settlement Authority nor any case was decided by the Supreme Court or, a High Court after the above Act in order to attract above subsection (2) of section 2 of the Act.

6. (a) Before taking up the above contention, it may be pertinent to observe that, prior to the Act, Ordinance No. XV of 1974 was promulgated on 30-9-1974 with effect from 1-7-1974. The above Ordinance was enacted in the form of the Act. In order to appreciate the respective contentions of the learned counsel for the parties, it may be advantageous to reproduce hereinbelow subsection (2) of section 2 of the Act which reads as follows:---

"(2) Upon the repeal of the aforesaid Acts and regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the Official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.

(b) It may be noted that, by virtue of the above saving clause, all proceedings which immediately before such repeal might be pending before the authorities appointed thereunder stood transferred for final disposal to such officers who were to be notified by the provincial Government in the Official Gazette, and all cases decided by the Supreme Court or a High Court after the repeal which would have been remanded to any such authority in the absence of the repeal were to be treated as remanded to the officer notified as aforesaid.

7. In the instant case, there are two points, which require considera tion, namely, whether any proceedings were pending on the promulgation of Ordinance No.XV of 1974, or on the enforcement of the Act before the Settlement Authorities. It was contended by Mr. Akhtar Mahmood Khan that since the L.P.A. against--the-order of the learned Single Judge, dated 15-3-1971, was pending at the time of the promulgation of the above Ordinance and the enforcement of the Act, in which the Chief Settlement Commissioner's notification, dated 3-9-1963 was challenged, it would be deemed that the proceedings were pending. It was further urged by him that, in any case, the above L.P.A. was disposed of by aforesaid order, dated 30-12-1978 read with the aforesaid order, dated 6-10-1979 passed on the petitioner's application under section 152, C.P.C. It amounts to a decision by a High Court after the repeal, and it was saved by the second categories of the cases saved by the above-quoted subsection(2) of section 2 of the Act. It may be pointed out that, under the above compromise, the petitioner had received a sum of Rs.3,80,000 as a consideration for relinquishing all his rights and interest claimed by him in the land in question in favour of Bantva Memon Co-operative Housing Society Ltd. It may further be pointed out that, under para. 3 of the compromise application quoted hereinabove, it was provided that the produce index units of the petitioner utilised by the Settlement Department against the allotment of the aforesaid land now stands released, and the petitioner without prejudice to the interest of Bantva Memon Co-operative Housing Society Ltd. shall be free to utilise them according to law. In other words, the petitioner received a sum of Rs.3,80,000, because of the fact that the aforesaid land situated in Deh Gujro was settled against the Petitioner's 854 P.I. U , It is also evident that by virtue of the above compromise, the above 854 P.I. U. stood released on the date of the compromise. We are, therefore, of the view that factually no proceedings in respect of either the aforesaid land or 854 P.I. Us,, were pending on the day of promulgation of Ordinance No.XV of 1974, or on date of enforcement of the Act, and therefore no proceedings were saved by the above-quoted) subsection (2) of section 2 of the Act.

8. (a) It is true that against the balance of 1202 P. I. U., the Petitioner was allotted the aforesaid land against the adjustment of 854 P. I . U. , thus leaving a balance of 348 P. I . U . However, we find that, at no point of time, the petitioner requested the Settlement Department that his above balance of 348 P. I . U . should be settled against the allotment of any land. The Petitioner has not brought any document on record to indicate that he has made any request for the Settlement of his above 348 P. I. U . ; nor he has even averred so in the petition. In this view of the matter, the Petitioner did not after April, 1962 upon the allotment of the aforesaid land, pursue the matter further. Consequently, at the time of the promulgation of the above Ordinance on 30-9-1979 and the enforcement of the Act, the above balance of 348 P.I.U. remained unsettled. The Petitioner cannot blame for this any one except to himself, with the result that he is now entitled to get his above 348 P.I.U. satisfied by obtaining bonds. The Court cannot issue mandamus in favour of a petitioner, who has himself been guilty of omission or negligence for a period of nearly eighteen years till the filing of the present petition on 7-5-1980 from the date of the allotment of the above land on 26-4-1962.

(b) As regards the above 854 P.I.U., which stood released on 30-12-1978, upon the above compromise of the L.P.A., it may be observed that, in term of para. 3 of the application, the petitioner became entitled to utilise the same without prejudice to the interest of Bantva Memon Co-operative Housing Society Ltd., according to law. It may be pointed out that on 30-12-1978, the law as stood was that the petitioner could obtain the Settlement of his P. I. U. in form of bonds, and not in form of land. The respondent /department, as observed hereinabove, is ready and willing not only to settle 854 P. I. U. in form of bonds, but the total balance, namely, 1202 P. I . U . The order passed by this Court on 30-12-1978 read with order, dated 16-10-1979 in the aforesaid L.P.A. cannot be construed a decision by this Court contemplating any adjudication in terms of subsection (2) of section 2 of the Act. Factually, the above appeal in terms of the order, dated 30-12-1978 stood dismissed as withdrawn without any order of the Court. The Petitioner did not notify the Court that he had received the balance of Rs.2,50,000 which was to be paid by Bantva Memon Co-operative Housing Society Ltd. before 31-1-1979.

9. Even otherwise, the petitioner is seeking a writ in' the nature of a mandamus, which cannot be claimed by a petitioner unless he satisfies the conditions precedent to the availing of the same. In this regard, it may be pertinent to refer to the case of Hindu General Panchayat (Regd.) v. Government of Sind and 21 others 1984 C L C 503, in which a Division Bench of this Court, to which one of us was a party (Ajmal Mian, J) after reviewing the case law, observed inter alia as follows: ---

"(i) A writ of mandamus may be invoked to compel reasonable exercise of official discretion.

(ii) A writ of order of mandamus is a direction to any natural person, corporation or inferior Court requiring them to do some specific thing appertaining to the office or duty.

(iii) The object of writ of mandamus is to enforce plain, positive, specific and ministerial duty presently existing and imposed by law upon officers.

(iv) A writ of mandamus is issued when there is no other adequate and specific legal remedy and without which there would be failure of justice.

(v) The person claiming a writ of mandamus should show that he has a clear legal right to the performance of duty by the respondent against whom writ of mandamus is sought.

(vi) If a writ of mandamus is claimed against a public office, the duty must be such, which is clearly defined, imposed and enjoined by law as a duty resulting from public office.

(vii) A writ of mandamus cannot be issued to enforce a contractual right.

(viii) Though under the relevant Article of the Constitution of Pakistan, the power of judicial review of administrative actions conferred on the High Court is to be exercised by issuing direction or order without using their technical names like mandamus certuirari etc. but this power is akin to the high prerogative writs known by their technical names in England."

Apart from other aspects, the petitioner has failed to show that he has a clear right to the performance of duty by the respondent in the form of allotting the agricultural land in his favour.

10. For the aforesaid reasons, the petition is dismissed with no order as to costs.

M . Y . H . Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.