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Writ Petition No.94/R of 1987, decided on 30th June, 1987.

---S.3--Constitution of Pakistan (1973), Art.199--Public functionary in utter disregard of order passed by High Court in writ proceedings making inroads therein by passing orders amounting to mockery of law and abuse of quasi-judicial powers conferred on him--Show-cause notice as to why he should not be punished for contempt issued by High Court.

Muhammad Taseer for Petitioners.

Tanvir Ahmad, Addl. A.-G. for, Respondents Nos. 1 and 2.

Sh. Abdul Aziz for Respondents Nos. 3 to 5.

Date of hearing: 30th June, 1987.

The site measuring 2 kanals 6 marlas comprising khasra No.2696/2353 and 2697/2353 situate in Mianapura, Sialkot City, is the subject-matter of this writ petition. It was in possession of Allah Ditta who died during the pendency of this litigation and has been substituted by respondents No.3 to 5. Earlier he sought declaration under the Evacuee Laws, from the Custodian of Evacuee Property, regarding his tenancy rights in the said land. On the enforcement of the Displaced Persons (Compensation and Rehabilitation) Act the deceased applied for its transfer in his name under Settlement Scheme No.VI, but the Deputy Settlement Commissioner vide order, dated 30-5-1961 rejected his claim as he came to the conclusion that the built up area was less than 1/4th of the total area.

2. The property was then auctioned. In the record of the Settlement Department, it was described as plot No.l/1581. The bid of petitioner No.7 was the highest. The plot was, thus, transferred in his favour. But later on petitioner No.1 and her husband namely, Rana Muhammad Abdullah, were joined with him as transferees and their names included in the Transfer Order. Petitioners Nos.2 to 6 are the legal representatives of Rana Muhammad Abdullah who died in the meanwhile. Petitioners Nos.8 & 9' are the alienees of the parcels of the plot through sale made by petitioner No.1. The auction was duly confirmed. Allah Ditta, challenged the auction through an appeal which failed. The revision petition filed by him also met the same fate. He then brought writ petition No.1050/R-65. The learned Single' Judge, confirmed the findings of the Settlement authorities that the built up area was less than 1/4th of the total area and, therefore, the deceased-applicant did not qualify for transfer of the plot under Settlement Scheme No. VI . The writ petition was dismissed on 7-3-1972 and in the operative part of the order, it was maintained that--

.A perusal of Annexure 'B' shows that the claim form of the petitioner was rejected by the order, dated 31-5-1961. He should have challenged this order in appeal before the Additional Settlement Commissioner. It appears that he has not done so. He tried to get copy of the order of the Additional Settlement Commissioner, approving the auction in favour of respondent No.3. These were two independent and separate proceedings. There is nothing on record to show that he challenged the order of the Deputy Settlement Commissioner, dated 31-5-1961 in appeal before the Additional Settlement Commissioner. If it is so, this order will attain finality against him. It appears that he filed an appeal before the Settlement Commissioner against the confirmation order of auction of the Additional Settlement Commissioner. Even if he succeeds to get this confirmation order set aside, that will not automatically entitle him to get the plot in dispute. He could succeed only by establishing his own right and for that purpose he should have challenged the order of the Deputy Settlement Commissioner rejecting his claim form."

The deceased then preferred review application No.62/72, to seek removal of the judgment, dated 7-3-1972, but it was also dismissed.

3. In the meanwhile, he made an attempt to get the property transferred under Settlement Scheme No. VIII but his form was rejected on 15-9-67, on the ground that the plot had already been auctioned and was no longer available for disposal. Notwithstanding this rejection the deceased made an attempt to obtain permission to file again form B.S. under Settlement Scheme No.VIII, but his application in this behalf was disallowed by Deputy Settlement Commissioner on 9-7-1971 (Annexure H/7) for the reason that the property had already been auctioned to petitioner No.7. There was still another effort by the deceased to file B.S. form (Annexure H/8). But, it is obvious, from the Settlement Commissioner's letter dated 21-1-1974 (Annexure H/9) addressed to the Minister Rehabilitation and Settlement Department, Punjab Govt. that the deceased's request was not acceded to as he was found to have lost his case upto the level of the High Court.

4. It seems that having gained the impression that the litigation against them on the Settlement side had come to an end, the transferees moved an application against Allah Ditta, under Section 13 of the Rent Restriction Ordinance (Annexure-I) for his eviction, from the property in dispute. The deceased denied the relationship of landlord and tenant but his this plea was turned down and other issues were also disposed of by the Rent Controller by his order, dated 22-4-67. His appeal against this order was dismissed by appellate Court on 6-5-67. Thereafter, the parties entered into a compromise (Annexure I/6) under which the deceased agreed to purchase the property, but reportedly he failed to comply with the terms of the compromise. When the petitioners moved the Rent Controller for execution of the ejectment order, the deceased filed an objection petition under section 47, C .P. C . but the executing Court rejected the same by means of its order, dated 25-11-67. The deceased unsuccessfully challenged this rejection through an appeal. The order dismissing the appeal is dated 15-4-1968 (Annexure-K).

5. It appears that simultaneously the deceased filed a declaratory suit (Annexure-I/7) against the landlords i.e. petitioners Nos.l & 7 and the predecessor in interest of other. petitioner, challenging the validity of the ejectment orders. The learned trial Court dismissed the suit on 29-1-70 (Annexure-1/8). Earlier the deceased preferred R.S.A. No.348/68 against the order, dated 15-4-68, but it was dismissed by the High Court on 4-4-1970 (Annexure-M).

6. The dismissal of the R.S.A. was not the end of the litigation. It was continued by the deceased. But instead of going to the Supreme Court he came back to the Civil Court and again filed a declaratory suit that through execution of the warrant for possession issued in pursuance of the ejectment order relating to a plot he could not be evicted from the house in his possession: The learned trial Court rightly found that the matter regarding the plot and the house stood already determined by the High Court's decision in the R.S.A. and vide judgment, dated 14-6-79 dismissed the suit. This dismissal was confirmed by the learned appellate Court by its judgment, dated 12-11-79. The High Court refused to interfere under section 115, C.P.C. and dismissed on 18-12-79, Revision Petition No.1397/79 brought by the deceased (Annexure-Q). Consequently, the warrant for possession was executed and Allah Ditta deceased on 29-12-79 (Annexure Q-2) evicted from the property in dispute.

7. The matter does not stop here. One Rana Sarfraz Ahmad Khan then appeared on the scene and commenced yet another round of litigation against the petitioners, who according to them was in collusion with the deceased. He claimed that the deceased was tenant under him, in the property in dispute and prayed for permanent injunction restraining the petitioners from interfering with his possession. The learned Civil Judge rejected the plaint under Order VII Rule 11 C .P. C . The appeal and revision petition of Sarfraz Ahmad Khan were dismissed on 24-11-79 and 9-7-80, respectively (Annexures S & T).

8. In the course of this litigation the evacuee laws were repealed and a Scheme known as "Scheme For the Management and Disposal of Available Urban Properties" was promulgated under Section 3(1) read with Section 1 of Act XIV of 1975. During the pendency of his R . S . A . No.348/ 1968 the deceased again endeavoured to try his luck and surreptitiously filed form dated 8-10-1977 under the said Scheme, for transfer of property bearing khasras No.2697/2353/651-650 and 2696/2353/651-650 with an area of 2 Kanals 6 Marlas. The Deputy Administrator (R.P.) on the basis of the office-report that the case had already been decided by the High Court, in Writ Petition No.1050-R/65 on 7-3-1972 maintained that the property was not available for disposal and by order dated 7-12-1978 rejected the form.

9. Dissatisfied with this order, Allah Ditta filed an appeal and conceded before the Administrator (R.P.) that property No.l/1581 measuring 2 kanals 6 marlas comprising khasras No.2696/2353 and 2697/2353 in respect whereof he had obtained a declaration, regarding his tenancy rights, from the Deputy 'Custodian Evacuee Property, stood settled on the petitioners and was no longer available for transfer. Despite the fact that in the previous litigation between the parties the question of availability of property occupied by the deceased had been discussed several times and concluded, the counsel for the deceased made a request to the Administrator (R.P.) to send back the case to the Deputy Administrator and give him an opportunity to prove that the property in his possession was not yet disposed of. The request prevailed with the Administrator (R.P.) and in his order, dated 30-8-79 he maintained:-

" . . . . His request as in the present revision petition seen in the light of the above would deserve nothing but dismissal but he earnestly requested remand of the case to the Ld. Lower Court for consideration of his request in case he could prove that he was in possession of the property which was still available for disposal. I reluctantly agree to his request making it clear categorically that his request be only considered if it did not pertain to property No. 1/1581 with its corresponding khasra numbers as given above already disposed of under the provisions of the Displaced Persons (Com. & Reh.) Act, 1958, since repealed "

As a result of the post-remand hearing the Deputy Administrator (R. P.) held that the property applied for by the deceased was the same for which he had already unsuccessfully litigated in various Courts. He, thus, rejected the Form by order dated 14-11-85.

10. In the meantime Allah Ditta died and respondents Nos.3 to 5 as his legal representatives again filed a revision. It was heard and allowed by respondent No.1. On the file of the Deputy Administrator (R.P:) there was a report of the Tehsildar, on the basis whereof respondent No.1 accepted the revision. The operative part of his order dated 27-12-86 under challenge in this writ petition is reproduced below:

"The report of the Tehsildar supported by the Revenue record is very clear. Khasra No.2696/2353, measuring 1 K and 10 M, belonged to Makhan Lal, while khasra No.2697/2353 belonged to Gurdas. Comparing with the entries of Municipal Assessment Register of 1946, Khasra No.2696/2353 corresponds to 1/1579-80 and Khasra No.2697/2353, corresponds to 1/1581. Property No.l/1581 only is claimed to have been auctioned and purchased by the respondents, while Property No.l/1579-80 although owned by an evacuee having been purchased by him from a Muslim Roshan Din, before partition, as borne out from the Revenue record, was still lying undisposed of, because of lack of its corresponding entry as such on the Municipal record, where it is still' shown as owned by Roshan Din. Previous litigation between the parties pertain to property No.l/1581 alone. Although Allah Ditta was also irf occupation of this plot, but he failed to get it transferred under various Schemes. But property No.l/1579-80 is a district property and has remained. undisposed of under the D.P. (Comp. and Reh.) Act. For the above-stated reason it is still available as a Residual Property being a distinct property owned by a different evacuee owner. The petitioners were entitled to its transfer under the R.P. Scheme. Previous litigation was limited to Property No.l/1581 and as such there is no bar against the right of the present petitioners. In the circumstances as discussed above, I accept the revision petition and set aside the impugned order and order for the transfer of property No.l/1579-80 to the present petitioners against the R.P. Form."

11. I have heard the learned counsel for the parties and examined the available record. Two contentions have been raised on behalf of the petitioners. Firstly, vide Punjab Govt. Services and General Administration and Information Department's notification No.S.T. 2.2/86, dated 22nd December, 1986, respondent No.1 was transferred from Gujranwala with immediate effect as Deputy Secretary/ Deputy Director (0 & M Wing) Services and General Administration Department, Lahore. He ceased to be Administrator (R.P.) Gujranwala on 27-12-86 when he heard the revision petition. Thus, the impugned order was passed by him without lawful authority. Secondly, the property in dispute remained subject-matter of protracted litigation between the parties which went up to High Court; its identity was fully established; both the khasras No.2697/2353 and 2697/2353 measuring in all 2 kanals 6 marlas were permanently settled on the petitioners; respondent No.1 not only acted without jurisdiction but misused his powers in transferring to respondents Nos.3 to 5, Khasra No.2696/2353 with an area of one kanal 10 marlas, under property No.l/1579-80.

12. There is no merit in the 1st point. No doubt under the notification, respondent No.1 was transferred from Gujranwala with immediate effect, but it is in his report submitted under the directions of this Court that he relinquished the charge of his office on 1st January, 1987, with the permission of the Commissioner Gujranwala Division, Gujranwala. I feel that till such time he relinquished the charge he could act as Administrator (R.P.) and the hearing of the revision by him, on that account, does not suffer from any illegality.

13. As regards the petitioner's second contention, in the order, dated 30-8-1979 of the Administrator (R.P.) it is clearly stated that property No.l/1581 measures 2 kanals 6 marlas and comprises khasras No.2696/2353 and 2697/2353 and that it was disposed of through unrestricted public auction, may back on 22-11-62. That the transfer documents were also issued to the auction-purchaser, regarding this property and the case stood finalised. This finding is based on the admission of the learned counsel for the respondents. Further in the body of the writ petition No.1050/R-65 also filed by Allah Ditta, the property sold by auction was described as comprising aforesaid two khasra numbers with an area of 2 kanals 6 marlas. As already observed this auction was upheld by the High Court. In the review petition rejected on 10-1-73 it was specifically urged that the property auctioned as one unit, belonged to different owners.

14. It is to be noticed that in his form Annexure H/2 Allah Ditta showed area of property No.l/1581 applied for by him as 2 kanals 6 marlas. The same is the position in his form Annexure H/8. Even in the plaint Annexure 'N' reflects that property comprising plot No. 1/1581 measures 2 kanals 6 marlas. In addition to this in the Form Annexure 'U', against which property No.1/1579-80 bearing khasra No.2696/2353 has been transferred to the respondents under the impugned order, the area of the aforesaid two khasra Nos. is described as two kanals 6 marlas. There are several other documents on the file, including the different orders passed by the High Court, which amply demonstrate that property No.l/1581, disposed of through auction consists of Khasras No.2696/2353 and 2697/2353. This property, therefore, was not available for disposal. Assuming that these two khasra Numbers belonged to, two different evacuee owners. There was no legal bar for disposal thereof through auction as one unit. There is nothing on the record that khasra No.l/1579-80 corresponds to khasra No.2697/2353. In any case it is obvious from the decision of the High Court and the Civil Courts that the property comprising the two khasra Nos. transferred to the auction-purchaser was identified under different property Nos. including 1/1579-80. Faced with this situation, the learned counsel for the respondents did not have much in defending the impugned orders.

15. It is evident from the record that all these orders have been ignored by respondent No. 1. There was no legal basis to slice away after 24 years a big chunk of the property, permanently settled on the auction-purchaser and transfer the same to respondents No.3 to 5. Thus, the impugned orders are utterly illegal and without jurisdiction. Indeed this is a case of blatant misuse of his powers by a public functionary. It is unfortunate that the petitioners were dragged into a chain of litigation by an abuse of the machinery of law.

16. For the foregoing reasons this writ petition is accepted with costs and the impugned orders are declared to have been passed without lawful authority and as of no legal effect. The property transferred to respondents No.3 to 5 shall be treated as part and parcel of the property settled on the auction-purchaser. The costs are fixed at Rs.3,000/- which shall be borne by respondents No.1, 3, 4 & 5 jointly and severally.

I notice that prima facie respondent No.1 has disregarded the orders of the High Court and made an inroad therein. Seemingly, the impugned orders amount to a mockery of administration of law and a naked abuse of quasi judicial power, conferred on respondent No.1. There are sufficient grounds to believe that he has committed contempt of Court and in the interest of effective administration of justice, it is necessary to proceed against him. Issue him a notice to show cause, why he should not be punished for contempt of Court.

K.B.A./R-39/L Petition accepted

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