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Writ Petition No. 195/R of 1961, decided on 26th June 1961.

Error patent on face of record‑Rehabili tation authorities directing alleged claimant to allotment of land to get his identity established in Civil Court‑Direction, held, amounted to refusal to exercise jurisdiction‑Civil Courts barred against entertaining declaratory suit to establish title to evacuee lands‑Rehabilitation Resettlement Scheme‑Pakistan Rehabilita tion Act (XLI of 1956)‑Complete Codes for allotment of evacuee land Rehabilitation Court's exclusive jurisdiction to decide question‑Writ of certiorari granted Rehabilitation authorities' decision based on inadmissible evidence‑Constitution of Pakistan (1956), Art. 170‑[Mst. Zainab. v. Mst. Raji and. others P L D 1960 S C (Pak.) 229 rel.]

Evidence by‑When permitted‑Civil Procedure Code (V of 1908), O. XIX, r. 1.

Affidavit‑evidence is only permitted if there is an agreement between the parties that the evidence may be taken by affidavits or where under Order XIX rule, 1, Civil Procedure Code, there is an order of the Court that a particular fact may be proved by an affidavit or that an affidavit of any witness may be read at the hearing.

Malik Muhammad Akram for. Petitioner.

Mahmud Ahmad Qureshi assisted by M. B. Khizer Tamimi for Respondent 1.

Nemo for Respondent 2.

The facts as narrated in this writ petition are as follows :‑

Haider Raza and Ahmad Raza sons. of Raza Hassan owned 999 bighas 11 biswas of land in village Sadarpur; District Karnal (India). After migration to Pakistan in the year 1949, Ahmad Raza filed two claim forms bearing Nos. 5713 and 5716 in village Kirpal Singh, District Multan. By the first claim form, he claimed his own property and by the second claim form he claimed the property owned by his brother Haider Raza, whom he represented as having died during the disturbances. Before any allotement of land was made to Ahmad Raza, be died in the year 1951. Both of these claim forms were subsequently transferred to village Kalianwala, Tehsil Hafizabad, District Gujranwala, and on the 12th of July,‑ 1953, 1050 kanals of land was confirmed on these claim forms. In 1952, mutations Nos. 18 and 19 were got entered in respect of the succession of Haider Raza and Ahmad Raza. Again, at the time of the mutations, it was represented that Haider Raza had died during the disturbances. The mutations were ultimately sanctioned in the name of Mgt. Safdri Begum, a sister of the mother of Haider Raza and Ahmad Raza, as the sole surviving heir. Mst. Safdri Begum also died and respondent No. 1 applied to the Tehsildar, Hafizabad; in the year 1953, as a Mukhtar of Ali Aust son of Mst. Safdri Begum, that the mutations in respect of the land be sanctioned in. favour of Ali Aust. Respondent No. 1 again represented that Haider Raza had died during the disturbances. The land was mutated in the name of Ali Aust. Ultimately, the entire estate ‑was transferred by Ali Aust in favour of respondent No. 2 as a gift by mutation No, 536.

2. The petitioner, who claims to be Haider Raza son of Raza Hassan, applied to the Rehabilitation Commissioner, Lahore, for a review of the mutations on the ground that it had been wrongly represented in the Rehabilitation Courts that he had died during the disturbances and that as a matter of fact he had gone to Iraq in the year 1923 and had remained there in the service of the Iraq Petroleum Company Limited till 1941 and then in the year 1941 he had come to Karachi and. was employed in the Military Dairy Farm at Malir Cantt. till 1950 and that he was entitled to get the land, which stood in his name at the time of the partition in .India, and also as a sole heir to the property left by his brother Ahmad Raza. Mian Ghulam Shabbir, the Rehabilita tion ‑Commissioner, ordered on the 18th of August, 1959, that prima facie the applicant, who represented himself to be Haider Raza, was the same person whose land had been fraudulently acquired by Imam Ali respondent No. 1, and that the mutations Nos. 18 and 19 be reviewed. He further ordered that the statement of Ali Aust, who was an important witness in the case, should be recorded and if it was found that Imam Ali had intentionally cheated the department, necessary legal action be taken against him. The respondent No. 1 challenged this order by means of a writ petition in this Court, but the petition was dismissed by Sheikh Bashir Ahmad, J. on the 14th of September, 1959. The Letters Patent Appeal No. 161 of 1959 against this order was also dismissed on the 14th of October, 1959. The respondents' petition for special leave to appeal in the Supreme Court was also dismissed on the 6th of May, 1960.

3. In pursuance of the order passed by Mr. Ghulam Shabbir, Rehabilitation Commissioner,, Lahore, the mutations No. 18 and 19 of village Kalianwala were reviewed and sanctioned in favour of the petitioner by the orders of the Assistant Rehabilita tion Commissioner dated the 25th of September, 1959. The Tehsildar, Hafizabad, recorded the statement of Ali Aust on the 17th of December, 1959, wherein he admitted the petitioner to be the same Haider Raza son of Raza Hassan whose property had been mutated in his name.. The Tehsildar accordingly passed an order recommending that the respondent b;, tried under section 420.

P. P. C. and Martial Law Regulation No. 49 for having fraudu lently obtained evacuee property. The respondent No. 1 filed an appeal .against the order dated the 25th of September, 1959, by which mutations No. 18 and 19 were sanctioned in favour of the petitioner. The Deputy Rehabilitation Commissioner, Gujranwala, accepted the appeals and held that the identity of the petitioner had not been proved and that he should establish his identity in a Civil Court. The petitioner filed a revision against this order, which was dismissed on the 28th of February, 1961.

4. This is a writ petition challenging the order passed by the Rehabilitation Commissioner on the 28th of February, 1961, on the following grounds: --‑

"(f) That Mian Ghulam Shabbir, Rehabilitation Commissioner, Lahore had by his order dated 18‑8‑1959 (Copy Annexure P‑2) held the identity of the petitioner proved and no Rehabilitation Authority could subsequently go behind this order which was final between the parties.

(ii) At any rate there was no evidence to repel the presump tion which had been raised in favour of the petitioner by the order of the Rehabilitation Commissioner, Lahore. (Copy Annexure P‑2).

(iii) After the case had been remanded on 18‑8‑1959, respon dent No. 1 did not appear before the Assistant Rehabilitation Commissioner, Hafizabad, in spite of service and the proceedings were taken ex parte against him. Respondent No. 1 did not adduce any evidence at all in support of his case.

(iv) Ali Aust had made a statement on solemn affirmation in, person when examined in Court before the Tehsildar, Hafizabad on 17‑12‑1959. In the face of this Mr. Muhammad Akram Khan, Rehabilitation Commissioner, Lahore Division acted against the principles of natural justice, and evidence in relying upon certain alleged affidavits attributed to him. These affidavits have been used against the petitioner without affording him any opportunity to rebut these or to contradict and cross‑examine Ali Aust.

A true copy of the affidavit dated 5/7‑10‑1960 alleged to have been made by Ali Aust at the dictation of respondent No. 1 is attached herewith marked as Annexure P‑11.

(v) That the learned Rehabilitation Commissioner has further erred in admitting on record and also using the affidavits of Ali Aust and four other persons against the petitioner for the first time during the course of the revision without assigning any cause for it. These do not form a part of the evidence in the case and the petitioner has been seriously prejudiced by violation of the fundamental and elementary principles and procedure of natural justice:

(vi) The authenticity and genuineness of the passport No. 93 issued on 19‑8‑1936 by His Majesty's Consul at Mosul, Iraq in favour of the petitioner cannot be doubted at all. This in itself raises a presumption as regards the identity of the petitioner and also to the effect that it was properly issued to the right person in due course of law after holding the necessary and requisite enquiry.

A true copy of the extracts for this passport are attached herewith marked as Annexure P‑12.

(vii) During the year 1923 when the petitioner left India for Iraq no Pass‑port system was in vogue and the petitioner travelled under a permit issued in his favour.

(viii) Both the D. R. C. Gujranwala on appeal and Mr. Muhammad Akram Khan, Rehabilitation Commissioner on revision altogether ignored important and over‑whelmingly strong evidence on the record.

(a) This included a true copy of the Discharge Certificate issued by the Iraq Petroleum Company Ltd., Kirkuk (Iraq) on 9‑1‑1931 in favour of the petitioner.

A true copy thereof is attached herewith marked as Annexure P‑13.

(b) In the first instance the petitioner had in good faith submitted his claim Form No. 915736 which was registered No. 9163/1V on 31‑3‑1956 for allotment of agricultural land in Dadu (Sind). This fact was amply proved on the record by the documentary evidence.

(c) Discharge Certificate issued by the Farms Officer, Military Farm, Malir Cantt. showing that the petitioner remained employed as painter in the service of the Military from 1‑7‑1946 to 30‑9‑1950.

A true copy or this is attached herewith marked as Annexure P‑14.

(d) A number of witnesses closely connected with the family were also produced during the course of the enquiry and yet their evidence was completely over‑looked without assigning any reason.

(ix) As submitted earlier, respondent No. 1 at first took up the stand that the petitioner died during the disturbances of 1947. However subsequently in his statement dated 29‑7‑1959 during the course of the enquiry he took up the position that Haider Raza had died even before he (respondent No. 1) had attained the age of discretion. 'Yet the learned Rehabilitation Commissioner has wholly ignored this important aspect which cut at the very root of the case set up by the respondents.

A true copy of this statement is attached herewith marked as Annexure P‑15.

(x) That the learned Rehabilitation Commissioner based his judgment on a wholly erroneous and arbitrary consideration as to the onus of proof in the case.

(xi) That the errors in this case are apparent on the face of the record and are liable to be rectified by the issue of a writ."

5. Respondent No. 1 alone has contested the petition and a written statement has been filed on his behalf. It was denied that the petitioner was Haider Raza son of Raza Hassan of village Sadarpur, District Kamal. It was also contended that the points raised in the writ petition required factual investigations and that there was no error apparent on the face of the record, and thus no case was made out for the exercise of the writ jurisdiction.

6. Before dealing with the points that have been raised in this .petition, it would be advantageous to give a brief history of the manner in which this case has been dealt with by the Rehabilita tion Courts. In pursuance of the order of Mian Ghulam Shabbir, Rehabilitation Commissioner, dated the 18th of August, 1959, Annexure P‑2 the Assistant Rehabilitation Commissioner took up the review of mutations No. 18 and 19. A perusal of muta tions No. 18 and 19, Annexures P‑5 and P‑6, shows that the respondent claiming himself ‑to be a nephew of Mst. Safari Begum made a report to the Patwari that the mutation of the land of Ahmad Raza be sanctioned in ‑the name of Mst. Safari Begum. Similarly, he also made a report to the Patwari for the transfer of the land of Haider Raza ' in the name of Mst. Safari Begum on the ground that Haider Raza had died during the disturbances. Consequently, on the 17th of May, 1952, the property, which stood in the name of Ahmad Raza and Haider Raza, was mutated in the name of Mst. Safari Begum. This has already been mentioned that after the death of Mst. Safari Begum, this property was transferred .in the name of her son Ali Aust, who gifted‑ the same to respondent No. 1: The respondent acted as a Mukhtar‑e‑Am of Ali Aust in those proceed ings. When the review of these mutations was taken up by the Assistant Rehabilitation Commissioner, the respondent did not appear before the Assistant Rehabilitation Commissioner. It has been noted in the order on the mutation, Annexure P. 6, that Imam Ali respondent had not turned up in spite of service, that it had been reported by the process‑server that Imam Ali had refused to accept service, and that he had stated that he had already produced his evidence before the Rehabilitation Commis sioner, and in case he wanted to lead any further evidence, he would appear. The Assistant Rehabilitation Commissioner mainly basing his judgment on the findings of the Rehabilitation Commissioner and also after seeing some of the documents that were produced by Haider Rua petitioner, by his order dated the 25th of September, 1959, reviewed the previous orders of mutations No. 18 arid 19 and the whole of the property was ordered to be mutated in the name of Haider Raza petitioner: Mr. Rashid Anwar, Tehsildar Hafizabad, started proceedings in pursuance of the order of Mr. Ghulam Shabbir, Rehabilitation Commissioner, in order to determine whether the respondent should be prosecuted for having fraudulently obtained evacuee property. In these proceedings, the statement of Ali Aust was recorded, which is Annexure P. 7. In this statement Ali Aust stated that the respondent No. 1 had all the time been manipulating and. dealing with the property and that he did " not know anything as to how the same was transferred in the name of his mother and later in his own name. So much so, that he stated that he did not know as to where was the village Kalianwala situated, in which the property in dispute had been allotted, that the respondent was the manager and the trustee of the property of his mothers and he did not know anything about it. The Tehsildar ultimately after enquiry passed an order, Annexure P. 8, for .the prosecution of the respondent. The respondent filed appeals against the orders of review dated the 25th of September, 1959, passed in relation to mutations No. 18 and 19. The appeals were accepted by the Deputy Rehabilitation Commissioner, Gujranwala, by his order, Annexure P. 9. The grounds of appeal on behalf of the respondent, as discussed in the order of the. Deputy Rehabilitation Commis sioner, are :‑

(i) That the appellant was not called at the time of the attestation of the mutations appealed against, and the attesta tions were done in his absence.

(ii) That the Rehabilitation Commissioner, Lahore; has not given a final verdict in favour of the respondent.

The Deputy Rehabilitation. Commissioner after hearing the arguments came to the following conclusions:‑

"On points of law and equity also, there are some points to be considered. Both the Rehabilitation Commissioner and the High Court, one after the other, held that the matter deserves an elaborate enquiry. This has obviously not been done. Moreover, if the appellant has any grievances he should press them against Ali Aust, who inherited the properties from his mother, Mst. Safari Begum, who as the respondent claims should not have got the properties as Harder Rata was alive. There is no point in the respondent presenting these grievances on the present appellant. The identity of the respondent as Haider Raza being, therefore, not proved by the enquiries so far held and the proofs so far produced, the mutations in favour of Mst. Safari Begum be considered to be correct. Logically, therefore; the appellant must be considered, through the inheritance mutation in favour of Ali Aust and the gift mutation in favour of himself, as the rightful owner of the properties in question. The orders of the lower Court are, therefore, set aside and the appeal accepted. The respondent may, if he likes, get his identity established in a Civil Court."

In coming to these conclusions, the Deputy Rehabilitation Commissioner relied on four affidavits that were filed by respon dent‑No. 1 in which it was stated that the petitioner was not Haider Raza son of, Raza Hassan. Reliance was also placed on an affidavit of Ali Aust contrary to what he had stated before the Tehsildar. It was stated in the affidavit that the petitioner was not Harder Raza: Against this order of the Deputy Rehabilita tion Commissioner, a revision petition was field in the Court of the Rehabilitation Commissioner. The petition was dismissed by Order dated the 28th of February, 1961, Annexure P. 10.

7. The learned counsel for the petitioner urged that the approach of the Rehabilitation Courts was fallacious, that prima facie the identity of Haider Raza had been established before the Rehabilitation Commissioner, Mian Ghulam Shabbir, when he ordered a review of mutations No. 18 and 19, that the respondent did not appear before the Assistant Rehabilitation Commissioner and the evidence that he produced in appeal before the Deputy Rehabilitation Commissioner was legally inadmissible, that the Deputy Rehabilitation Commissioner was wrong in accepting the affidavit of Ali Aust as against the statement that he had made earlier on oath before the Tehsildar, that the least that should have been done was to examine Ali Aust and thus provide an opportunity to the petitioner to cross‑examine him as regards his earlier statement, that the documentary evidence produced by the petitioner to prove his identity which consisted of his service record, certificate of discharge from Iraqi Petroleum Company, Annexure P. 13, Passport Annexure P. 12, the certificate of discharge from the Military Dairy Farm, Malir Cantt. and a copy of the savings bank account with the Post Office, Karachi, have not been properly considered by the Deputy Rehabilitation Commissioner that Imam Ali respondent had all these years been representing that Haider Raza son of Raza Hassan had died during the disturbances, but the respondent was not contesting the position that Haider Raza had gone to Iraq in the year 1923, that the learned Deputy Rehabilitation Commissioner proceeded on a wrong assumption that the proceedings before him were of a preliminary character, and that the matter will have to be gone into by a Civil Court. The learned counsel for the respondent in reply has argued that the fact whether the petitioner was the same Haider Raza, who was the owner of land in District Karnal, could not be enquired into by this Court as it would involve a factual enquiry. It has been further contended that a writ of certiorari will be issued only when there was either want or excess of jurisdiction or there was any patent disregard of law, that the question whether the petitioner was the same Haider Raza, who owned property in India, having been gone into by the Rehabilita tion Courts, which were the only Courts competent to decide this matter, there was no occasion for issuance of any writ. Lastly, it has been contended on behalf of the respondent that the petitioner should file a civil suit for a declaration of his status and then apply to the Rehabilitation Courts for any relief that he might be entitled to.

8. On the authority of Mst. Zainab v. Mst. Raft, and others (P L D 1960 S C (Pak.) 229), it is settled law that the Rehabilitation Resettlement Scheme read with the Pakistan Rehabilitation Act provides a complete Code for allotment of evacuee land to refugees and other persons and it contains elaborate provisions for dealing with the claims made by the refugees in respect of land abandoned in India, that, these provisions are of a very wide import and by necessary intenment, these provisions bar the jurisdiction of Civil Courts to entertain a declaratory suit to establish title to evacuee lands abandoned in A India by a refugee claiming to own such lands. Their Lordships have gone so far as to lay down that a declaratory decree; even if passed by the Civil Court, can be ignored by the Rehabilitation authorities. In the present case, the petitioner claims that he is Haider Raza son of Raza Hassan and is thus entitled to the allotment of land, which had been wrongly mutated in the name of Mst. Safdri Begum and ultimately gifted to the respondent. He also claims the property allotted in, the name of Ahmad Raza, his brother, as his sole heir. There is an error patent on the face of it in the judgment of the Deputy Rehabilitation Commissioner as he wrongly ordered that the question whether the petitioner was the same Haider Raza, had to be decided by the Civil Courts. The learned counsel for the respondent contended that although the Deputy Rehabilitation Commissioner had remarked that in his judgment but the, Rehabilitation Commissioner has not said anything about the question being decided by a Civil Court This argument of the learned counsel cannot be accepted because when the appellate judgment was passed on an erroneous view f law, the revisional judgment could not be taken to have corrected the mistake. The decision in the Rehabilitation Courts has been arrived at by accepting inadmissible evidence. The affidavits of Ali Aust and others could not have been made the basis of a decision, as affidavit‑evidence is only permitted if there is an agreement between the parties that the evidence may be taken by affidavits or where under Order XIX, rule 1, Civil. Procedure Code, there is an order of the Court that a particular fact may be proved by an affidavit or that an affidavit of any witness may be read at the hearing. In the present case, the Deputy Rehabili tation Commissioner did not even examine Ali Aust, who had earlier made a statement on oath before the Tehsildar accepting the petitioner as the same Haider Raza son of Raza Hassan, who ad abandoned property in India. The Rehabilitation Commis sioner in his revisional judgment has also relied on this very inadmissible evidence. As a matter of fact, he also seems to have taken the matter in a cursory manner suffering under the same mistake of law that this matter will be considered more minutely in the Civil Court. When the matter came up before the Deputy Rehabilitation Commissioner, the only cause open to him was either to remand the case to the Assistant Rehabilitation Commissioner for a fresh decision after recording the evidence of the parties or he should have framed issues on the points in dispute and asked the parties to lead evidence and then given a finding. The Rehabilitation Courts had exclusive jurisdiction in deciding he points in issue and they have failed to exercise their jurisdiction on the assumption that the matter will ultimately be decided by a Civil Court. In view of this discussion, it is clear that the order of the Rehabilitation Courts are vitiated as they have taken a manifestly wrong view of the law and have based there judg ment on inadmissible evidence. In such circumstances, this is eminently a fit case for issuing a writ of certiorari. I, therefore, quash the orders passed by the Deputy Rehabilitation Commis sioner dated the 8th of June, 1961, and the Rehabilitation Commissioner dated the 281h of February, 1961. The Rehabilitation Courts will hold a proper enquiry after providing opportunity to the parties to lead evidence on the points in issue. The respondent will bear the costs of this petition.

A. H.

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