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Constitutional Petition No. S.87 of 1977, decided on 3rd April, 1986.

‑‑‑Art.199‑‑Constitutional jurisdiction, exercise of‑‑Tribunal having jurisdiction to decide a matter, held, was competent to decide it rightly or wrongly and mere fact decision was incorrect would not render that decision as without lawful authority and of no legal effect.

Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 S C 139 ref.

‑‑‑Ss.10 & 11‑‑Constitution of Pakistan (1973), Art.199‑‑Transfer of property‑‑Matter formerly agitated in a Constitutional Petition wherein High Court, while remanding case, directed to determine entitlement of parties in possession of house in question afresh and decided case keeping in view provisions of law after considering claims of occupants of property‑‑Notified Officer omitting to consider and determine questions raised before him in light of order of High Court ‑‑Such omission of Notified Officer, held, would tantamount to failure to exercise jurisdiction which rendered order without lawful authority and of no legal effect.

Ahsan Ali and others v. District Judge and others P .L D 1969 C 167 rel.

‑‑‑Ss.10, 11 & Sched., para. 1‑‑Settlement Scheme No. VIII‑‑Transfer of property‑‑Petitioner ‑ and respondent non‑claimants‑‑Without determining entitlement of petitioner and respondent for transfer of house in question in light of paras. 6 & 7 of Settlement Scheme No.VIII, read with Schedule 1, para. 1 of Act XXVIII of 1958, entire house was given awl by authorities to respondent‑ ‑sigh Court in a former writ question of entitlement of parties in accordance with law but Notified Officer failing to do so‑‑Case remanded and, Notified Officer directed to decide questions, which were remanded for determination by High Court in former Constitutional Petition.

Mst. Hajiran Sughra v. The District Judge and Settlement Commissioner; Hyderabad and others 1969 S C M R 686 and Ghulam Mehar v. Chief Land Settlement Commissioner, Punjab and others P L D 1974 Lah. 520 rel.

‑‑‑Art.199‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.10 & 11‑‑Settlement Scheme No.VIII‑‑Transfer of property‑‑Dispute as to determination of entitlement of property in question was only between the two, respondents‑‑Contention that one respondent was not interested in property and he filed no petition against transfer of entire house to the other respondent and, therefore, such respondent stood eliminated‑‑Neither such a finding had been recorded by Notified Officer nor its legal implications had been considered by said officer‑‑Genuineness of form submitted by said respondent still remaining undetermined. Determination of point for the first time in constitutional jurisdiction refused by High Court.

Sarfaraz Ahmad and Rafiq Ahmad for Petitioner.

Nemo for Respondents Nos. 1 to 3.

Akhtar Mahmood for Respondents No.4 and 5.

Dates of hearing: 25th November, 5th December .1985; 13th, 14th and 23rd January 1986.

This petition under Article 199 of the Constitution of 1973 has been filed by the petitioner seeking declaration that the order passed on 22nd May, 1966 by the Deputy Settlement Commissioner and that passed by the Additional Settlement Commissioner in revision on 24th June, 1977 be declared as without lawful authority and of no legal effect. It has been further prayed that it be declared that the petitioner is the transferee of the entire house on the basis of his physical possession on 20th December 1958 and for direction to the Settlement Authorities to act according to law.

1. The facts relevant for the purpose of this case are that according to the petitioner the property bearing C.S. No.A/114‑2475, Hirabad Hyderabad was in occupation of 12 families of displaced persons including the petitioner and Budho the respondent No.5 since 1948, each family was in possession a separate portion.

It is not necessary to narrate here in detail various developments which subsequently took place as the facts are dealt with by a learned Judge of this Court in Constitutional Petition No.533 of 1969 which was disposed of on 27‑2‑1976. Suffice however it would be to point out before proceeding further that at one time the property under the Earmarking Scheme was transferred to one Mst. Amina Khatoon. According to the Petitioner tie application made by him under Settlement Scheme for transfer of the portion in his possession was rejected with the remarks that the property already stood transferred to Mst. Amina Khatoon. She paid .the entire price. P.T.D. however was not issued th the said lady as the property was treated as an evacuee trust property. Consequently at her own request the price paid was returned to her.

Around 1964 the petitioner learnt that the entire property had been transferred to Muhammad Ramzan, the respondent No.4 against which he made representations but the Deputy Settlement Commissioner refused tc re‑open the case by order made on 9‑11‑1965. The petitioner alleged that the respondent No.4 had initially filed a joint C.H. Form for the transfer of the property along with respondent No.5 but when realised that joint C . H . Form could not have been submitted by him particularly because he was a local the said joint form was got replaced Ly respondent No.4, by the C.H. Form of respondent No.5 (Budho) and thus got the entire property transferred to the respondent No.5 who later on surrendered his rights in the house in favour of respondent No.4. It was thus urged by the petitioner that forgery in the official record had been committed and that the transfer of the house was obtained by the respondent No.5 by fraudulent means.

2. On 3‑2‑1967 the District Judge‑cum‑Ex:‑ ‑ Officie Settlement commissioner, however, for the first time declared the above property as non‑evacuee trust rp operty and therefore available or transfer to the occupants who may be found entitled to its transTer‑ rom the date o his order onwadrs.

The petitioner Jamil Ahmad who challenged had order of the Deputy Settlement Commissioner dated 9‑11‑1965, initiated various proceedings but without success. The dispute including the legality of transfer of the property in favour of the respondent No.5/Budhu who had surrendered his rights ‑in favour of respondent No.4/Muhammad Ramzan to whom the disputed property stood transferred by Settlement Authorities ultimately became the subject‑matter of C.P. No.535 of 1969 which was filed by one Mst. Fatima and the Petitioner/Jamil Ahmad, against the Settlement Authorities, Muhammad Ramzan respondent No.4 and Budhu/respnodent No.5. In the said petition the petitioner raised a number of pleas which have been noted by the learned Judge in para. 6 of the judgment delivered by him in the said petition which for the sake of convenience are reproduced below:‑‑

"The learned counsel for the petitioner No.2 has mainly argued that the transfer in favour of respondent No.5 (Muhammad kamzan) was effected on the strength of C.H. Form which had replaced the earlier joint C.H. Form submitted by respondents Nos.4 and 5, Firstly, according to him this form could not have been entertained by the Settlement Authorities because the status of the property and had not been determined by them. Secondly, the Settlement Authorities, should have taken note of the facts that the entries in the Register had been smeared with ink in order to hide the fact that the form on the record was a joint form he has concluded by saying that the property had been wrongly transferred to the respondent No.5. The surrender of rights by him in favour of respondent No.4 was equally illegal and unwarranted by facts. According to him, all this was done by forging the record with the connivance of the staff of the Settlement Department. as far as Petitioner No.2's own right to transfer of portion in his occupation is concerned, he has urged that the portion of the house in which he was living was an independent portion and the same could be transferred to him as an independent and separate unit. He further canvassed that the Settlement Authorities could not transfer this property to any 1967 because until them the status of the property was considered that of evacuee trust property."

The said petition was contested by Respondents Nos.4 and 5 by raising a number of pleas but ultimately the learned Judge disposed it of by judgment passed on 27‑2‑1976 after observing that it was clear from the admitted position on record that the petitioner No.2 Jamil applied to the Settlement Commissioner for the transfer of the portion of the house in his favour in 1969 when he came to know that the status of the property had been determined as an evacuee property but his application was dismissed. The learned Judge then hold as follows:‑‑

"To sum up the discussion on this point, I am of the view that petitioner No. 2 had rightly challenged the transfer made in favour of respondent No. 4 after 3rd February, 1967 and it was incumbent upon the Settlement Authorities to have invited applications from the occupants of the house after the status of the property was determined as evacuee as was ordered by the District Judge and ex officio Settlement Commissioner. These authorities should have cancelled their transfer order made earlier as they were without any foundation. Before the passing of the orders by the District Judge‑cum‑Settlement Commissioner the status of the property was disputed and at least the petitioner No.2 and other persons living in that house were genuinely under the impression that it was evacuee trust property, and therefore it was not transferable to them. The transfer documents issued to the respondent No.4 were not therefore sustainable having been issued earlier to the declaration made about the status. of the property.

The learned counsel for the respondents Nos.4 and 5 further urged that the portion occupied by the petitioner No.2 is not an independent unit. As I am not inclined to hold as whether the petitioner No.2 is entitled to the transfer of the portion of the house as independent unit and whether it is transferable as an independent and separate unit, therefore this question needs no further discussion by me. I would be for the Settlement Authorities to see as to whether or not this portion is independently transferable to petitioner No.2

7. To sum up the above discussion I hold that the transfer document issued to respondent No.5 were ab initio illegal and void and without lawful authority. The surrender of the right in favour of respondent No.4 was equally illegal. Transfer document issued to respondent No.4 therefore stand cancelled. The case is remanded back to the Deputy Settlement Commissioner having jurisdiction in the matter who should examine the entitlement of the parties in possession of the house in question afresh and keeping in view the provisions to decide the case of petitioner No.2 respondents Nos.4 and 5. After considering the claim of the occupants of the property on 3rd February, 1967, he should decide the case afresh."

The judgment given in the abovementioned Petition (C.P. No.535 169) was not challenged by any of the parties, which therefore attained finality.

4. The case pursuant to the order of remand came up for hearing before Deputy Settlement Commissioner/ Notified Officer. Before the said, officer on behalf of the present petitioner/ Jamil Ahmad following grounds were urged:‑‑

(i) that the respondent's C. H . Form was not genuine and authentic and the same was got registered fraudulently to secure the transfer of disputed house in his favour from the Settlement Department.

(ii) that Muhammad Ramzan, the respondent No.4 is not the original occupant but he is a different person who has never been in possession of any portion of this property.

(iii) that the property in dispute was in possession of more than 10 persons but most of them were ousted by the present Muhammad Ramzan the Respondent No.4 who thus secured possession from the original occupants.

(iv) that Jamil Ahmad, the petitioner is 'in possession of the portion of the property since 1948 he has also paid rent to the trust authorities, and is entitled to transfer of the house.

5. The Deputy Settlement Commissioner inspected the property in dispute. On the site inspection made by him being of the opinion that the petitioner is in occupation of the portion of gallery of the main house which is situated on the road side and that the said portion has no amenities of life such as laterine and bath room etc. held that the entire house is occupied by Muhammad Ramzan the respondent No.4. He also held that other occupants who had filed forms for transfer of their respective portions were not found residing in it and that the portion in possession of the applicant Jamil Ahmad cannot in any way be termed as a house as per its definition given in the Settlement Act.

The Deputy Settlement Commissioner having held as above, that the property in dispute is a house and that portion in possession of the petitioner /Jamil Ahmad cannot be termed as a separate house, proceeded to determine the entitled of the parties to the claim for transfer of the said house. The finding recorded by the said officer/ Deputy Settlement Commissioner in his order dated 22nd May, 1967 is reproduced here-in-below:‑‑

"No doubt the applicant Jamil Ahmad is in possession of the portion of the house along with the other occupants who had already left their portions which are now occupied by respondent No‑4. These portions are not separated by any partition wall but are interconnected with the main house occupied by respondent No.4. The respondent No.4 is the occupant of the entire house excepting the gallery, which is in possession of the applicant Jamil Ahmad. This portion of applicant is not a house but a tanny portion and cannot be treated to be a separate and 12omplete unit which may be transferred ‑to the applicant. The respondent No.4 is in possession of entire house and as such he has a superior title of the transfer of the house in question. I, therefore, hold that the entire house along with the portion occupied by the applicant Jamil Ahmad is transferred to Muhammad Ramzan as it is a part of the main house and cannot be detached f nom it. "

6. It would be relevant to mention here that the Settlement Laws, in the meantime had been repealed by Evacuee Property and Displaced Persons Laws (Repeal) _Act XIV of 1975 (hereinafter referred to as the Repealing Act of 1975) made effective from 1st July, 1974 and all the pending cases before the Settlement Authorities stood transferred for final disposal. to such officers as were notified by the provincial Government. This case which was remanded by the High Court by its judgment passed on 27‑2‑1976 in C.P. No.535 of 1969 was disposed of by order passed on 22‑5‑1976 by the notified officer (the Deputy Settlement Commissioner). It is conceded by the learned Advocates for both the parties that against it no appeal or revision thereafter was competent. This observation has been made here as I find that against the above order dated 22nd May, 1976 passed by the Deputy Settlement Commissioner/ Notified Officer revision. Application was filed by the petitioner /Jamil Ahmad under the mistaken belief that the order passed by the Deputy Settlement Commissioner/ Notified Officer was revisable by the Additional Settlement Commissioner. I therefore, in view of the Settlement law and as also conceded by the learned counsel for the parties that this revision application was incompetent and the order dated 24th June, 1977 passed by the Additional Settlement Commissioner was without jurisdiction and coram non judice need not deal with the observations and findings recorded thereon, the same being nullity in the eyes of the law.

7. We therefore are now left with the order dated 22nd May, 1976 passed by then Deputy Settlement Commissioner/ Notified Officer.

8. Both the learned counsel for the parties argued at length. Mr. Akhtar Mahmood, Advocates on behalf of the respondents Nos.4 and 5 i.e. Muhammad Ramzan and Budhu laid particular emphasis on the legal aspect of the case that the findings given by the Deputy Settlement Commissioner/ Notified Officer that the property in dispute is an inadvisible house and that the portion in possession of Jamil Ahmad/the petitioner is not an independent house, are findings of fact which are not open to challenge in exercise of the constitutional jurisdiction of this Court. A large number of cases were cited in support of this contention but I content myself by referring here to the case of Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 wherein the principle was authoritatively laid down that it is well‑settled law that where a Court or a tribunal has jurisdiction and it determine that question, it cannot be said that it acted illegal or with material irregularity merely because he came to erroneous decision on a question of fact or even of law. A tribunal having jurisdiction to decide matter is competent to decide it rightly or wrongly and mere fact that the decision is incorrect that does not render it as without lawful authority and of no legal effect. I need not in view of the above judgment of the Honourable Supreme Court refer to other cases i which the same principle has been reiterated and followed:‑‑

9. Important however here is to note that the learned Judge of the High Court while remanding the case by judgment given in C.P. No.535 of 1969 inter alia had given the following directions:‑‑

(i) To determine the entitlement of the parties in possession of the house in question afresh and keeping in view the provisions of law to decide the case of Jamil Ahmad and Muhammad Ramzan and Bhudhu the respondents Nos. 4 and 5.

(ii) After considering claims of the occupants of the property as on 3rd February 1967 concerned officer should decide the case afresh.

From the reading of the impugned order dated 22nd May, 1976 passed by the Deputy Settlement Commissioner Notified Officer, it however becomes evidence that the said officer after having reached the conclusion that the property in question is a house and that the portion in possession of the petitioner Jamil Ahmad is not independent house without determining the entitlement of the parties, ordered the transfer of the entire house exclusively to Muhammad Ramzan, the respondent N0.4 on the sole ground that he "is the occupant of the entire house excepting gallery which is in possession of the applicant Jamil Ahmad" and as such he has superior title of the transfer of the house in question, from which the portion occupied by Jamil Ahmad/the petitioner being a part of the main house cannot be detached.

The Deputy Settlement Commissioner/ Notified Officer did not determine the question expressly raised earlier in C.P. No.535 of 1969 and even before him that the alleged form on which the transfer was sought by Muhnmmad Ramzan and Budho, the respondents Nos.4 and 5 is a fabricated document. Moreover while determining the entitlement of the parties the said officer also did not consider the entitlement of the parties to the transfer of the whole house in the light the relevant law as laid down in clauses 6 and 7 of the Settlement Scheme No.VIII and other relevant provisions of the said Scheme read with Schedule No.1 of the Displaced Persons (C & R) Act of 1958.

10. The omission on the part of the Deputy Settlement Commissioner/ Notified Officer to consider and determine the questions raised before him in the light of the order of remand passed by the High Court tantamounts, to failure to exercise jurisdiction which renders th B impugned order without lawful authority and of no legal effect. The view thus taken by me is supported by the principle laid down by th Honourable Supreme Court of Pakistan in the case of Ahsan Ali al others v. District Judge and others P L D 1969 S C 167, the relevant observations appear at page 173 of the report which are reproduced here-in-below :‑‑

"It was, as pointed out earlier in this judgment also the duty of the Additional Settlement Commissioner to apply his mind to the question of limitation and to examine the facts relating to the claim of respondent No.3, since valuable rights to property were involved. This Settlement Authorities had, we regret to say, not dealt with the case according to law and in the High Court too this aspect of the case was not noticed.

We are, therefore, of opinion that this appeal must be allowed and the judgments of the High Court as also of the Settlement Commissioner and the Additional Settlement Commissioner set aside. The case will now be remanded to the Additional Settlement Commissioner for the disposal of the appeal in accordance with law after giving the parties adequate opportunity of representing their respective cases and adducing evidence both on the question of limitation as well as the question of fraud."

The above principle applies to the facts of the case referred to above more particular to the plea raised by the petitioner in the earlier constitutional petition and also before the Notified Officer after remand that the form alleged to have been submitted by Budhu and Muhammad Ramzan was a fabricated /forged document but to it the said Officer did not apply his mind at all.

The above‑mentioned principle laid down the Supreme Court of Pakistan also applies to failure of the Notified Officer to determine the entitlement in the light of the relevant provisions of Settlement Scheme No.VIII and para 1 of the Schedule 1 to the Act of 1958.

11. I may also refer here to the case of "Mst. Hajiran Sughra v. The District Judge and Settlement Commissioner Hyderabad and others 1969 S C M R 686 wherein also the case was sent back by the Honourable Supreme Court of Pakistan with the direction for a proper enquiry and to determine the other questions which had not been decided on the principle that since important aspect of the matter had not been considered either by the Settlement Authority or by the High Court the finding of the Settlement Commissioner even though one of fact cannot be sustained as it was based upon a non‑consideration of an important aspect of the case and material items‑of the evidence.

12. In the case of Ghulam Mehar v. Chief Land Settlement Commissioner Punjab and others P L D 1974 Lah. 520 a learned Division Bench of the said High Court declared the impugned order of the Chief Land Settlement Commissioner without lawful authority for the reason that he did not attend to the material point raised and consider relevant aspect of the case.

Admittedly the petitioner /Jamil Ahmad and the respondent No.4/Muhammad Ramzan both are non‑claimants but without determine in their entitlement to the transfer of the house in the light of paras 6 and 7 of the Settlement Scheme VIII read with Schedule 1 para. 1 o the D.P. Act of 1958 the entire house was given away to Muhamma Ramzan for a reason not justified by the law.

13. A view may be taken that Budhu/the respondent No.5 is n longer interested in the property, he having not filed any petition against the transfer of the house to the respondent No.4/Muhamma Ramzan and thus the former stands eliminated and thus in the circumstances it can be very well contended that the dispute as to the determination of entitlement now remains between the petitioner/Jam" Ahmad and Muhammad Ramzan the respondent No.4, both non‑claimants. I would have been justified to take this view but Mr. Akhtar Mahmood, the learned counsel for the respondents Nos.4 and 5 submitted that the latter has no objection to the transfer of the property to Muhammad Ramzan/ the respondent No.4. I however find that neither such a finding has been recorded by the Notified Officer nor its legal implication have been considered by the said Officer: .I would not like to determine this question for the first time here also for the reason that genuineness of his form still has remained undetermined.

14. In the circumstances discussed above, I find. that ends of justice would be met by remanding this case to the Notified Officer to decide the questions which were remanded for determination by the judgment of the High Court passed on 27‑1‑1975 in Constitutional Petition No.535 of 1969 afresh in the light of the observations made as above.

The impugned order is accordingly set aside and the case i remanded. The parties are left to bear their own costs.

M.Y.H. Case remanded.

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