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Writ Petition No. 965/R of 1977, decided on 11th March 1986.

‑‑‑ Part A, para. 4‑‑Constitution of Pakistan (1973), Art. 199 Transfer of evacuee industrial concern through auction‑‑Documentary evidence on record showing that evacuee industrial concerns were purchased through auction by father of respondent not singly but jointly with other auction‑purchasers as their attorney and payment of such properties admittedly was made by all jointly‑‑Father of respondent being attorney of others himself acknowledged that he took over possession of properties for himself and on behalf of others After death of such attorney wife and mother of respondent wrote to Chief Settlement Commissioner that disputed properties were purchased by her late husband jointly with other auction‑purchasers‑‑Documents on contention that properties in dispute were purchased by his father singly, was totally false and findings of Settlement Commissioner that father of respondent was sole auction purchaser was based on wrong facts‑‑Finding of Settlement Commissioner, held, suffered non‑reading of relevant document and facts‑ on records f N. 1571

‑‑‑S. 10‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2‑‑Constitution of Pakistan (1973), Art. 199‑‑Wrong and fraudulent entries in P. T. D.‑‑Correction of‑‑Competency of Settlement authorities‑‑Settlement Authorities, held, were always competent to correct wrong entries made in P. T. D. or entries got fraudulently made therein.

‑‑‑Art. 199‑‑Findings of authority based on wrong facts and suffering from non‑reading of relevant documents and facts, held, could be declared illegal by High Court in exercise of constitutions jurisdiction.

Malik Amjad Hussain for Petitioner.

Ch. Muhammad Nazir Ahmad for the Settlement Department.

A. R. Shaukat for Respondent.

Nemo for the Remaining Respondents.

Date of hearing: 11th March 1986.

Through this constitutional petition, Zahid Ali and 63 others, the petitioners want this Court to declare the order, dated 11‑2‑1977 of the Settlement Commissioner (Industries), Lahore, to be without lawful authority and of no legal effect.

2. The facts leading up' to this petition as stated by the learned counsel for the petitioners briefly are that two evacuee industrial concerns namely the Pioneer Rubber Works &. Upper India Leather Works at Sialkot were auctioned on 24‑11‑1959. S.M. Irfan Ullah and 30 others, all claimants had agreed to offer joint bid through S.M. Ifran Ullah as Special Attorney of others. He filed claim in the office of the Chief Settlement Commissioner (Industries). It was however, incorrectly stated in the bid sheet that Irfan Ullah was the only bidder. Irfan Ullah started paying "dividend" proportionate to the contribution of otter associates. His son F. A . Sayyad respondent No.2 used to look, after the concern at Sialkot on behalf of his father. Irfan Ullah died on 2‑11‑1962. On 17‑1‑1963, his son F. A . Sayyad acknowledged the liability to pay dividend to associates of his father. It so happened that on 14‑12‑1962, F.A. Sayyad intimated to Settlement Commissioner (Industries) that his father the auction purchaser had died. Leaving behind 5 heirs and that he will act for all heirs in all matters regarding the concern. As against him, Begum Sarwari Irfan Ullah informed the Chief Settlement Commissioner on 21‑3‑1963 that there were 69 auction purchasers. On 15‑4‑1963 the Settlement Commissioner (Industries) permanently transferred the concern to 69 persons on the ground that they had paid the whole of the auction price. On 6‑3‑1965 F.A. Sayyed filed a false affidavit to the effect that Messrs Pioneer Rubber Works., Ltd. was also share‑holder with the five heirs of Irfanullah and that he was its Managing Director. According to the petitioners, this Company was not in existence at the time of auction. Through fraud and misrepresentation permanent transfer certificate was obtained on 25‑3‑1963, in favour of Messrs Pioneer Rubber Works Ltd. On 4‑4-1'968 the office reported that P. T. D. should have been issued in the name of 69 auction purchasers and that F . A . Sayyad had obtained P.T.D fraudulently. It was suggested that‑the P. T . D. be corrected and a case be lodged with police against F.A. Sayyad. On this a case under section 420/120, P.P.C. was registered against F.A. Sayyad. The P.T.D. in his favour was subsequently rectified by the Additional Settlement Commissioner on 22‑5‑1968 endorsing on it that 69 persons were the joint transferees. Feeling aggrieved of this order, F.A. Sayyad filed appeal before the Settlement Commissioner (Industries) which was dismissed on 7‑8‑1968. F.A. Sayyed then filed Writ Petition which was accepted on 13‑11‑1974 and the case was remanded to the Settlement Commissioner (Industries) for fresh decision. On remand, the learned Settlement Commissioner (Industries) respondent No.1 vide impugned order, dated 11‑2‑1977 held that S.M. Irfanullah was the only auction purchaser, hence this petition.

3. The learned counsel for the petitioner submitted that the impugned order suffers from non‑reading of material documentary evidence available on the file to the effect that the bid was made by S.M. Irfan Ullah not singly but also on behalf of petitioners and the payment was also made by all ' the joint auction purchasers; that the learned Settlement Commissioner has not attended to the reasons for the Additional Settlement Commissioner to rectify the P.T.D. on 22‑5‑1968 and that the Additional Settlement Commissioner was legally authorised to correct the mistakes in the P.T.D. Conversely, the learned counsel for the respondents have supported the impugned order. They maintained that the P.T.D. having been issued in favour of the legal heirs of S.M. Irfan Ullah, the Additional Settlement Commissioner had become functus officio and could not have made any amendment in the P.T.D. by way of inclusion of others i.e. the petitioners; that the auction Committee had accepted the highest bid of S.M. Irfan Ullah as having bid in the auction singly; that S.M. Irfanullah had never applied to the Department foregoing his rights as sole auction purchaser and that the acceptance of highest bid of S.M. Irfanul Ullah sole purchaser was final and that the change of status of the auction purchasers was made by the Additional Settlement Commissioner arbitrarily.

4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that the impugned order really suffers from non‑reading of material documents, which supported the case of petitioner e.g.

(a) The application, dated 15‑12‑1959 filed by S.M. Irfanullah before the Chief Settlement Commissioner wherein he admitted to have offered the bid for himself and attorney for others (Annexure, B,).

(b) The noting and orders‑part, of the record whereby recommendation, dated 16‑12‑1959 was made to the Additional Settlement Commissioner (Industries) for accepting a joint bid of S.M. Irfanullah and 30 others and the order of approval of the recommendation on the same day (Annexure 'C').

(c) The letter, dated 9650/RB, dated 17‑12‑1959 of the Chief Settlement Commissioner to the Deputy Settlement Commissioner wherein it was stated that:‑

"bid was offered by S.M. Irfanullah and others. (described below)

It may be noted that in that letter the names of 30 Joint purchasers in the auction were given (Annexure 'C').

(d) The acknowledgement by S.M. Irfan Ullah that he took over the possession for himself and attorney on behalf of others. (Annexure F).

(e) On 27‑1‑1972 S.M. Irfanullah had applied for the exclusion of 13 persons from the list of the "auction purchasers" and inclusion of 51 persons "in the purchase of the factory". This request was accepted by the Settlement Commissioner (Industries) on 2‑10‑1961 under Memo. No. 358, dated 27‑1‑1962 of the Secretary (Industries) Rehabilitation Board/ Additional Settlement Commissioner (Industries). The names of 69 joint purchasers of the disputed property are given therein (Annexures G, G/1 and H).

(f) The objection raised by the officials of the Settlement Department to the substitution of the name of 69 joint purchasers was over‑ruled by the Settlement Commissioner (Industries) vide order dated 23‑7‑1962 (Annexure H/1);

(g) The fact that S.M. Irfanullah had been paying "dividend" to 68 joint purchasers proportionate to their respective payments of the auction price.

(h) The fact that on 17‑1‑1963 F.A. Sayyad respondent had acknowledged the liability to pay the dividends in his letter photostat copy whereof is Annexure 'I'."

were not read or were misread.

I find that the aformentioned documents were very much relevant and careful examination of the same by the Settlement Commissioner (Industries) respondent No.1 before passing of the impugned order was very much essential for the just decision of the dispute before him. The aforesaid documents do support claim of the petitioners that the disputed property was purchased by S.M. Irfanullah not singly but was purchased jointly with others. It may be noted that the learned Settlement Commissioner had not taken into account the letter Annexure (K), dated 21‑3‑1963 written by. Begum Sarwari Irfanullah, the mother of F. A Sayyad respondent to the Chief Settlement Commissioner stating that there were 69 partners in the auction of the disputed property.

5. After having examined the aforementioned documents, I feel that the claim of F. A. Sayyad that his father S.M. Irfanullah had purchased the disputed property singly was totally false. I feel that after the death of S.M. Irfanullah, his son F. A. Sayyad became dishonest. Instead of honouring the commitment of his father, he swore false affidavit and fraudulently and collusively obtained P.T.D. in the name of legal heirs of S.M. Irfanullah to the exclusion of other rightful auction purchasers.

6. The findings of the Settlement Commissioner in the impugned order to the effect that S.M. Irfanullah was the sole auction purchaser is based on wrong facts and suffer ‑from non‑reading of the reliable relevant documents and facts. It is well‑settled that the Settlement Authorities are always competent to correct wrong entries made in the P.T.D. or the entries got. Fraudulently made in it.

7.For what has been said above, the impugned order, dated; 11‑2‑1977 of the Settlement Commissioner Lahore respondent. No.1 i ' declared to have been passed without lawful authority and is of legal effect. Resultantly the order of the Additional Settlement, Commissioner, dated 22‑5‑1968 holds the field. The parties are left to bear their own costs.

H.B.T Order accordingly.

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