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Writ Petition No. 470 of 1960, decided on 12th February 1963.
Court may form own opinion by comparing disputed signature with admitted signature on affidavit.
Acting on client's derogatory instructions which can be verified to be false by ordinary exercise of care-- Does not discharge his duty with due regard of his responsibility-- Grossly exaggerated, misleading and irresponsible statements dero gatory to trust reposed in counsel.
An Advocate does not discharge his duty with due regard of the responsibility of his high office if he uses derogatory instructions which can be verified by him to be false, by ordinary exercise of care. It is necessary for maintaining an atmosphere of mutual trust between the Court and an Advocate that the Advocate should not even state his inferences as facts. As the Court has a right to listen to a counsel with confidence, their trust is not respected if he makes grossly exaggerated, misleading or irresponsible statements.
Served on inmate of house (in Hyderabad) while party intended to be served is in Dacca‑Not "good service."
Quantum of delay not known‑No material./or judging sufficiency or otherwise of reasons for delay‑No ground for Court to exercise discretion to condone delay.
Where the quantum of delay is not known and, therefore, the sufficiency or otherwise of the reasons for the delay cannot be judged, there is no possibility of exercising the discretion to condone the delay.
Order impugned, itself illegal‑Order dis missing Review application from such order not challenged in writ petition‑Omission of no importance‑Constitution of Pakistan (1956), Art. 170‑[Muhammad Ismail v. Rehabilitation Commis sioner P L D 1960 Lah. 194 ref.].
Constitution of Pakistan (1956), Art. 170‑Writ petition filed under Constitution of 1956‑To be disposed of not under Art. 98 of Constitution of 1962 but under Art. 170 of Constitution of 1956.
"Defective" exercise of jurisdiction is lack of jurisdiction in the matter of issue of certiorari‑Constitution of Pakistan (1956), Art. 170‑Writ.
The expression "jurisdiction" may be accepted to include "assumption and exercise of jurisdiction", because no authority can be said to have exercised its jurisdiction if it wets prevented from knowing the true facts, if it took for a material fact what was not in law that fact ; if it proceeded to act in grave and obvious disregard of a material provision of law ; if it exercised a discretion without the existence of the situation in which it could be exercised ; if it violated the principles of natural justice when the law had not permitted it to do so, and if it gave reasons for its conclusions which could not, in those circumstances, rationally lead to them. This is not an exhaustive list of those instances in which defective exercise of jurisdiction may be successfully pleaded but it is sufficiently elaborate.
Grindlay's Bank Ltd. v. Murree Brewery Co. Ltd. P L D 1954 Lah. 745 ; Ziaul Haq v. Government of West Pakistan P L D 1956 Lah. 358 ; Feroze Din v. Government of West Pakistan P L D 1961 Lah. 304 ; R. v. Recorder of Leicester, Ex Parte Wood (1947) 1 All E R 928 ; R. v. Birmingham Compensation Appeal Tribunal (1952) 2 All E R 100 ; Rex v. Nat Bell Liquors Limited (1922) 2 A C 128 ; Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1948) 1 K B 223 ; and Ex Parte Bradlaugh 3 Q B (1878) 509 ref.
Santosh Kumar Shah v. District Magistrate of Faridpur P L D 1959 Dacca 738 ; Sardar Sher Muhammad v. Rao Bashir Ali Khan P L D 1962 Lah. 172 ; Dyal Singh College Dust Society v. The Custodian of Evacuee Property P L D 1962 Lah. 352 and Mst. Mahmooda Begum v. Chief Settlement Commissioner P L D 1962 Lah. 911 considered.
Locus standi of petitioner‑Person in possession of house for a number of years [though his P. T. O. was cancelled (by an illegal order)] has locus standi to make petition‑Consti tution of Pakistan (1956), Art. 170‑[Rex. v. Richmond Confirming Authority (1921) l A C 248 and Forster v. Forster (1863) 4 B & S 187 ref.].
S. M. Sohail for Petitioner.
Sayeed A. Shaikh for Respondents Nos. 1 & 2.
Dingomal for Respondent No. 3.
Dates of hearing : 8th, 9th and 10th January‑1963.
JUDGMENT
QADEERUDDIN AHMAD, J.‑‑Our
learned brothers, Wahid uddin Ahmad and A. S. Faruqui, JJ., admitted this writ petition on the 10th of May 1961 after a report from the Additional Custodian of Evacuee Property, dated the 5th of April 1961, containing the departmental explanations, was received.
2. The gist of the petitioner's case is that bungalow No. 14‑A, situated in Amil Colony, Hyderabad of the Cosmo politan Co‑operative Housing Society, Ltd. was allotted to his son by the Rent Controller in May 1948 (Annexure A) and that the family is since then in occupation of it. In December 1959, the house was provisionally transferred to the petitioner (Annexure A‑1), but it was declared to be a non‑evacuee property (Annexures H, I and J) in violation of the principles of natural justice, against law and as a result of fraud, by orders which can be shown to be illegal on the face of the record.
3. According to the contents of the petition and the documents annexed to it, the history of the litigation begins in 1951 when an occupant of house No. 13 of the Colony applied to the Deputy Custodian for fixation of its rent. Disputes relating to the evacuee character of the houses of the Colony were apparently coming up again and again before the depart ment, therefore, he directed that the whole question be examined and determined "once for all" (first para. of Annexure B). The enquiry was accordingly made by Khwaja Muhammad Yakoob, Assistant Custodian in 1951. Late Mr. Dharamdas Advocate, who was at that time the President of the Co‑operative Society and husband of Mst. Chaturbai respondent No. 3 who claims to be the owner of Bungalow No. 14‑A, wrote to the Assistant Custodian that all the "tenant‑owners" of the houses of the Society which were about 76 in number had migrated to India excepting for the "tenant‑owners" of houses Nos. 20, 53 and 59, who were still nationals of Pakistan, but he argued before that officer, on the basis of an alleged agreement between the Society and its members, that the houses belonged to the Society and not to its members and that as such they were non‑evacuee property. Neither the agreement nor the bye‑laws of the Society were produced before the Assistant Custodian, who found that the Society was the lessee of the piece of land on which the Colony stood and that its members who had constructed the houses were the sub‑lessees of the plots of lands which were sub‑let to them by the Society but owners of the houses which they bad constructed on them. He, therefore, held on the 29th of May 1951 (Annexure B) that
"the houses of these Hindu members who have migrated to India are evacuee properties and, therefore, rent can now be fixed by the Custodian. The occupants of such buildings be asked to pay the rents to the Custodian."
4. The order was submitted to the Custodian at Karachi and was approved by him on the 11th of June 1951 (Annexure B) as follows
"I agree. Those who have not paid all the instalments have certain rights which vest in the Custodian. It appears that the Society is itself evacuee property."
The reason why confirmation was made in this form is explained by the contents of the Assistant Custodian's order which shows that Mr. Dharamdas had contended that there were members who had not paid the dues to the Society, which suggested. that the defaulters could not be the owners. This argument was plausible because non‑payment of dues could be a bar in the compilation of the proprietary rights of those members a d the interest which had been created could be forfeited, but it was not kept in view by the Assistant Custodian in his above quoted conclusion. The Custodian, therefore, rectified the omission by pointing out that the right of the defaulters which remained in the society vested in the Custodian because the Society itself was an evacuee and its property was evacuee property. The over‑all result of this order was that all the houses of the Colony including house No. 14‑A and the entire property of the Society were held to be evacuee property on the grounds that the "tenant‑owners" of these houses as well as the Society were evacuees.
5. The Society went in appeal under section 36 of Ordi nance XV of 1949 but it was dismissed (Annexure C) on the ground that the order was not appealable, though an application under section 18 of the Ordinance could be made. No action was taken by the Society for about a year and half. On the 18th of December 1952 (See paragraph 2 of Annexure D‑2) an application (Annexure D) was moved by it through Mr. Dharamdas for declaration
"(a) that the Society aforesaid and its properties are not evacuee property,
(b) that the interest, right and title in the Society is not affected by the provisions of the Ordinance."
As the application was barred by time, a request was made that the delay be condoned. It was heard by Mr. Ishraq Hussain Siddiqui, Assistant Custodian, who did not find any justification for condoning the delay and who, while dismissing the appli cation, pointed out that "the property claimed by the Cosmo politan Co‑operative Society shall continue to remain as evacuee property" (Annexure D‑2). The Society preferred a revision petition against this order which was dismissed by the Custodian on the 3rd of August 1953 (Annexure E).
6. In 1954, the evacuee character of house No. 34 of the Colony was in question in a civil suit ; therefore, a reference was made by the Civil Court to the Custodian's Department for its decision. The question was decided by Mr. Wali Muhammad Khan; Assistant Custodian, who referred to the previous orders (Annexures B, C, D‑2 and E) and decided on the 11th of January 1955 (Annexure F) that "the property in question, stands as evacuee property."
7. No attempt vas; thereafter, made by the 'Society to claim the houses, of the Colony to be its .property , or to move the Custodian's Department for a reconsideration of the decisions that were made against it.
8. After 7 years of the first decision by which all the houses situated in the Colony excepting three were declared to be evacuee property (vide Annexure B), Mst. Chaturbai, respondent No. 3, applied to an Assistant Custodian, Evacuee Property, Hyderabad, on the 7th of June 1958, that the rent of the house, which was paid by its tenant to the Custodian, be refunded to her. This is the first time, according to the record of this petition, when she claimed to be the owner of house No. 14‑A. Her Advocate was informed by a letter of the Assistant Custodian, dated the 7th of August 1958, that the question of refund did not arise, as it was an evacuee property. That letter is not before us but it appears from paragraph 10 of her subsequent application (Annexure G) that the Assistant Custodian gave the reason to be that the property belonged to the Co‑operative Society which was itself an evacuee. . This gave an opportunity to her to press the distinction between the property of the Society and the property of its members. It was not simple to make use of this distinction because the reference in the letter to the previously held evacuee character of the Society informed her of the previous proceedings which could be discovered if they were not already known to her. She took no action for ten months and an application under section 22 of Act (XII of 1957) became barred by time from the date of this letter also.
9. There were two obstacles in her way. One of them was the question of limitation and the other was the com mencement of her title to the bungalow, because her husband, Mr. Dharamdas, Advocate, had given in writing to the Assistant Custodian in 1951 that all "tenant‑owners", except those of houses Nos. 20, 53 and 57 had migrated to India. If the date from which the rent was paid by the tenants to the Custodian was disclosed in the application, the application would have been hopelessly time‑barred on the face of it, because the tenants of the Colony were ordered (Annexure B) in 1951 to pay rent to the Custodian. Mr. Sohail contended before us that the tenant of bungalow No. 14, i.e., the petitioner's son had paid rent to the Custodian from an earlier date and produced rent receipts granted by the Custodian, which dated from 1948, but Mr. Dingomal objected to their production ; therefore, we do not take that date into consideration, but we must point out that the date and the manner of commencement of her title to the bungalow were also not disclosed in the application. She stated in paragraphs 2, 4 and 8 of the application as follows
"(2) That the applicant is a non‑evacuee and her statuts as well as that of her property had been declared both by the Deputy Custodian, Hyderabad as well as on appeal by the Additional Custodian E. P., Karachi. Reference is invited to the order in Appeal No. 47/50 of 1954.
(4) The bungalow No. 14‑A is the exclusive property of the applicant and is under no charge or obligation of the Society i.e., that all dues were paid up . to the Society ‑before the partition of the country, the plot money was paid to the
Municipality and the Society has no claim or interest in the aforesaid property. The property does not belong to the Pioneer Cosmopolitan Colony.
(8) Opponent has been habitual defaulter and was evading payment of rent. Suddenly it came to the notice of the applicant that opponent No. l in collusion with some underlying of the Custodian's Department had credited a small amount of rent with a view to defeat the rights of the applicant."
10. There is every reason to believe that the tenant who vas impleaded as a party to the application would have objected to the maintainability of the application and disclosed the true facts, but his address was given in the application to be‑
"Bungalow No. 14.
West Cosmopolitan Society"
and not as "14‑A, Amil Colony. The order (Annexure H) by which Mr. Ghouri, Deputy Custodian, decided the application, in her favour says that‑
"due notice was given to the respondents, the Rehabilitation Authorities and the same was also got published in "Aftab" Hyderabad, dated 19‑9‑1959 in order to call objections from other persons interested, but none has appeared nor raised any objections."
Mr. Sohail has described "Aftab" as a "non‑descript paper" and the notice published in it is not before us. We find from the order, however, that the application was heard ex parte, Mr. Dharamdas appeared as a witness for his wife, and the application was accepted, as follows
"I have gone through the evidence adduced by the applicant and am of opinion that the bungalow No. 14 belonging to the applicant is a non‑evacuee property, and accordingly it is declared as such subject to the approval of the Additional Custodian (Judi.) Karachi to whom the entire record is sub mitted herewith."
11. This declaration relating to bungalow No. 14 and not bungalow No. 14‑A appears to be the result of a wrong address of the tenant and perhaps a wrong reference to the house in the notice published in "Aftab". With this defect in the order, it was submitted to Mr. Syed Riazuddin Ahmad, Additional Custodian, Karachi, who displayed an insight by making the following order
"In this case the question of limitation has not been properly gone into. On 7‑8‑58, A. C. informed applicants' Advocate that the disputed property had been treated as evacuee property. But the application under section 22 was not filed until 5‑6‑59. The question is: Why this delay It should be ascertained when applicants received A. C's. letter dated 7‑8‑59 and why the delay, if any. The case is sent back for a finding on the point of limitation after permitting applicant to adduce further evidence,"
12. On remand, the case was not heard by Mr. Ghouri but by Mr. Irshad Ali Khan, who was also an Additional Custodian (Judi.) The application being the same as before, the address of the tenant remained unchanged. The order of Mr. Khan shows that a notice was published in "Aftab" of 19‑9‑59, and that nobody appeared before him. This date indicates that the proceedings were held without issuing fresh notices at all and this action is explainable by the fact that Mr. Syed Riazuddin Ahmad had ordered the hearing to take place on remand "after per mitting applicant to adduce further evidence." Miss Sheila, Advocate, appeared on behalf of her mother who was the applicant and did not produce more evidence except an affidavit of the applicant herself along with an order of the Custodian dated the 24th of March 1960, which is not before us. Mr. Khan concluded the proceedings by holding
"I am satisfied that the property bearing C. S. No. 14‑A, Amil Colony, is a non‑evacuee property of the applicant. This order is subject to the approval of the Custodian, Karachi."
13. The body of the order shows that facts were misrepre sented before Mr. Khan ; for he has said that
"Mr. Dharamdas examined himself on behalf of his wife, the applicant, and also produced a certified copy of the property register in respect of the property in dispute showing that the bungalow in dispute was transferred in the name of the appli cant by the Resolution of the Society . . . . . . The evidence of Mr. Dharamdas shows that the property in question was purchased by him and consideration was paid by him. All these facts support the contention of the applicant that she is the owner of the property as undoubtedly she is the wife of Mr. Dharamdas. As regards the point of limitation in respect of the application, there is nothing on the record to show when was the property in dispute treated as evacuee property. It is contended by the applicant that the cause of action arose since the day when the occupant refused to pay its rent to the applicant, but when the applicant immediately moved the Assistant Custodian for a declaration and demanded the money deposited by the applicant. I very much doubt if any regular order is passed by any appropriate Custodian with regards to the status of the property owing to the fact that it has not so far been allotted to any person and the possession is still with the tenant who are made a respondent but. as not come forward to challenge the allegations of the applicant. In the circumstances narrated above, the only presumption that can be drawn is that the property iii question is in the regular possession of the applicant and is non‑evacuee property. In fact the question of limitation does not arise because the property has never been treated as evacuee property or any step has even been taken to treat (it) as such. If any person occupying a premises unintentionally or by a mischief deposits the rent of the house with the Custodian, it will not divest the owner of its proprietary rights."
14. Mr. Sohail has suggested that copies of the property register and of the resolution of the Society, mentioned in the above quotation, were unreliable documents because they were the result of her manipulations. This suggestion finds support in the fact that the Assistant Custodian, who made the first order (Annexure B) against the Society‑ had statea in it as early as the 29th of May 1951 that
"it is said that all the registers (of the Society) have been lost."
At that time Mr. Dharamdas had informed the Deputy Custodian that all the "tenant‑owners" of the Society had migrated to India excepting those who were the "tenant‑owners" of houses Nos 20, 53 and 59. This means that the owner of bungalow No. 14‑A had also migrated from Pakistan. We do not know who was the "tenant‑owner" of this bungalow at that time, but it appears that the wife of Mr. Dharamdas was not that person, for, as contended by Mr. Dhingomal in a different light, Mr. Dharamdas was not a man who could describe his own wife to be a migrant. She could not be the owner in 1951 because it is clear from the order of Mr. Khan (Annexure I), which is based on the evidence of Mr. Dharamdas, that Mr. Dharamdas had purchased the property and paid its consideration. The true facts appear to be that neither she nor Mr. Dharam Das was owner of the bungalow in 1951. At that time the owner was somebody who had migrated to India and was declared to be an evacuee (Annexure B), but his identity has been concealed by the husband and the wife. The stands taken by them are contra dictory, for the evidence of Mr. Dharamdas was that the property was purchased by him and the consideration was paid by him, but paragraph 2 of the affidavit of his wife in these proceedings is as follows
"That before the Partition full purchase price of this plot was paid and the entire construction on the plot was raised by me at my own expense . . . . . "
We cannot believe either of them in this respect.
15. But it is unnecessary in these proceedings to go into the question of the ownership of the bungalow. We have set out the above facts to disclose the unreliability of the pro ceedings. Suppression of facts is disclosed by the following observation of Mr. Khan: ‑
"I very much doubt if any regular order is passed by any appropriate Custodian with regard to the status of the pro perty owing to the fact that it has NOT so far been allotted to any person . . . . . In the circumstances narrated above, the only presumption that can be drawn is that the property is in the regular possession of the occupant and is a non‑evacuee property."
The true facts, as against this observation, are that such orders (Annexures B, D‑2 and E) had been made and the bungalow was provisionally transferred to the petitioner (vide Annexure A‑1) about a year and a half before the date of the order.
16. The order of Mr. Khan was submitted to the Custodian who on the 25th of June 1960 confirmed it as follows
"The delay in the submission of the application by the petitioner, Mrs. Chaturbai, is hereby condoned and the order dated the 6th April 1960 passed by the Additional Custodian of Evacuee Property is hereby confirmed."
We may point out with utmost respect that a self‑contradiction has crept into this order, because Mr. Khan had held, in spite of the order of Mr. Syed Riazuddin Ahmad who had w remanded the case "for a finding on the point of limitation", that‑
"the question of limitation does not arise",
which decision of Mr. Khan could not be confirmed with simultaneous condonation of "the delay". This order too was also made in the absence of the tenant.
17. Mr. Dingomal and Miss Sheila, Advocates, pressed on us to believe that the tenant had been served but had remained absent. We, therefore, called upon the parties to submit their respective affidavits. The petitioner's son, Hamid Ahmad Khan submitted an affidavit stating that no notice was at any time received by or served on the petitioner or the tenant or any other member of the family of the petitioner. Miss Sheila, Advocate, informed us that service was effected on the tenant to her knowledge but she did not submit her own affidavit and caused to be submitted the affidavits of Mr. Din Muhammad, Advocate, who worked as her Assistant and of Sain Bux who is a clerk in the firm of "Messrs Dharamdas Mulchand & Co. Advocates." The latter has stated in paragraphs 3 and 4 of his affidavit as follows
"(3) That Mr. Din Muhammad took the notice to the Reader of Deputy Custodian, Hyderabad Mr. Muhammad Rafiq who directed peon Babu of the office of D. C. Hyderabad to accompany me for service.
(4) That I then took peon Babu to Bungalow No. 14‑A. Cosmopolitan Colony where petitioner was present whom already knew. Notice was given to him by Babu and I informed him about the pending .proceedings and notice of hearing in connection thereof."
As two affidavits were contradictory we directed Mr. Saeed A. Shaikh, counsel for respondents Nos. 1 and 2 to produce the original record, which he did. It shows that the Additional Custodian (Judi ) Karachi and Hyderabad, had returned the summons unserved with the following remarks
"Summons for service on Muhammad Sharif Khan received under the above cited reference returned herewith in original with an endorsement thereon containing the address of Mr. Muhammad Sharif Khan. Muhammad Sharif Khan being in service in the Defence Forces, has since been trans ferred to Dacca. His address is as under Major Muhammad Sharif Ahmad Khan, G. S. O. 2 (I) H. Q. 14 Div. (6 Branch) Dacca."
Mr. Dingomal stated that, according to his information, the endorsement; which is at the back of the summons, was in the hand of Mr. Hamid Ahmad Khan, the son of the petitioner who has submitted the aforesaid affidavit. We immediately made enquiries from him who denied the allegation and we are satisfied by comparing the endorsement at the back of the summons with the signature of Hamid Ahmad Khan on his affidavit that the two cannot be in the handwriting of one person.
18. We may add here that the groundless charge of perjury made on behalf of Mst. Chaturbai against Mr. Hamid Ahmad Khan in the circumstances that straight forwardness was wanting on her own side, caused us annoyance. Mr. Dingomal execused himself on the ground that he had acted on infor mations given to him. This threw a diffused reflection on Miss Sheila, Advocate, daughter of Mst. Chaturbai who was assisting him in the absence of her mother. We deem it proper to mention that an Advocate does not discharge his duty with due regard of the responsibility of his high office if he uses derogator instructions which can be verified by him to be false, by ordinary exercise of care. It is necessary for maintaining an atmosphere of mutual trust between the Court and an Advocate that the Advocate should not even state his inferences as facts. As the Court has a right to listen to a counsel with confidence, their trust is not respected if he makes grossly exaggerated, misleading or irresponsible statements. Nobody stands to gain by this and least of all the client of such a counsel, when counsel is found out.
19. All of the above stated basic facts are contained in the writ petition or are inferable from it. Mst. Chaturbai has not replied to the petition parawise, nor has she specifically or generally denied the allegations made in it. Her plea is less of traverse than of confession and avoidance. Her defence is that the "trouble" about the bungalow "arose in 1958" when the tenant "went and deposited rent in the Custodian's Depart ment, Hyderabad without" her knowledge ; that the house did not belong to the Society ; that it was declared to be a non evacuee property by the order (Annexure H) of Mr. Ghouri on her last application, which declaration, was repeated by Mr. Khan (Annexure 1) and confirmed by the Custodian (Annexure J). Her reply to the allegations of the petitioner is contained in paragraph 1 I of her affidavit, which is as follows
"That the various statements made in paragraphs 3 to 10 of the petition) are all misconceived and relate to other properties of the Society where the tenants of the society had built houses but had not paid ground rents, It has no reference to my property."
20. With the help of the facts and inferences set out above in the paragraphs which precede the last paragraph, we are in a position now to comment on her defences. It is wrong that the trouble arose in 1958. It bad arisen in 1951, if not earlier, and her husband was the central figure in it. The tenants were ordered in 1951 to deposit rent with the Custodian, and we believe that the tenant of this bungalow so deposited the rent from 1951. It is true that the house did not belong to the Society, but the stand of her own husband was to the contrary, and was overruled in 1951. She commenced litigation in disregard of the previous proceedings and obtained orders (Annexures H, I and J) in ex parte proceedings. Their validity is in question ; therefore, their mere existence is no defence unless she can show that the previous orders (Annxures B, D‑2 and E) with which these latter orders (Annexures H, I and J) are in conflict were validly reviewed, revised, over‑ruled or set aside, or that the previous orders did not relate to the bungalow in question.
21. It is clear that the previous orders were not reviewed, revised, over‑ruled or set aside. They were neither brought to the notice of the authorities who made the latter orders nor are they mentioned in the latter orders. Mr. Dharamdas drew a curtain in front of t hem by stating as her witness that "adver tantly or in-advertantly" the tenant "got the property treated as evacuee property" by depositing rent with the Custodian's Department (Annexure H).
22. She has attempted in these proceedings to justify the omission to recognise the previous proceedings as well as to nullify their effect by her defence that they are irrelevant. This has raised the question : Do the previous orders (Annexures B, D‑2 and E) relate to bungalow No. 14‑A The answer is that they obviously do, because they deal with all the houses of the Colony. Mr. Dingomal attempted to argue that the first order in particular (Annexure B) and therefore, the subsequent orders (Annexures D‑2 and E) related to the houses of those members of the society who had failed to pay the ground rent, but this is proved to be clearly wrong when the concluding portion of the Assistant Custodian's Order (Annexure B) is read with the order of the Custodian which concluded it. This has been explained earlier in paragraph 4.
23. Mr. Dingomal blamed the petitioner for suppressing facts and in support of his contention produced copies of two orders which we have taken on record, because Mr. Sohail did not object to their production, and have marked them as 'K' and L'. There is no reference to these orders in the writ petition. The order K' was made by Mr. Ghouri before deciding the application (Annexure G) of Mst. Chaturbai. An interim stay was granted by this order on the ground that the Custodian's Department had declared Mst. Chaturbai to be a non‑evacuee person and all her property which had been taken over by that department to be non‑evacuee property. The other order, L', was made by the Custodian dismissing a review application, of the petitioner and his son, against the order of the Custodian (Annexure J) by which bungalow No. 14‑A was confirmed to be a non‑evacuee property. We shall presently comment on these orders but should firstly point out that the charge of Mr. Dingomal that the petitioner had suppressed these orders was not well founded because Mst. Chaturbai too has made no mention of these orders in the affidavit submitted by her in reply to the writ petition.
24. The order K' does not advance the case of Mst. Chaturbai because there is no allegation of the petitioner that she is an evacuee person. The order itself gives prominence to the fact that she was formerly treated as an evacuee and paragraph 2 of application (Annexure G), which has been reproduced above by us in paragraph 9, shows that the shadow of evacuee character was not removed from her up to 1954. The order K' read with paragraph 2 of her application raises in our minds the question as to whether the person who was the owner of bungalow No. 14‑A in 1951 had been declared to be a non‑evacuee or not when he transferred it to Mr. Dharamdas and as to whether Mst. Chaturbai herself was an evacuee or a non‑evacuee when the bungalow, according to the evidence of Mr. Dharamdas to which reference has been made in the quotation reproduced by us in paragraph 13 above, was transferred to her by a resolution of the Society. There are no registered transfer deeds before us to remove from our minds objections to the validity of the transfers. Mr. Sohail repeatedly criticised the omission of Mst. Chaturbai in not disclosing the dates of the transfers but Mr. Dingomal and Miss Sheila Advocates, gave no reply to this criticism. We would, however not try to find an answer to it because it does not directly arise from the petition.
25. The order 'L' has been used b; Mr. Dingomal to support his contention that the petitioner and his son had notice of the order of the Custodian (Annexure J) by which bungalow No. 14‑A was confirmed to be a non‑evacuee property and which order is alleged by the petitioner to have been made without notice. We desired to see the relevant original record for ascertaining facts and it has been produced by Mr. Sayeed A. Shaikh, Advocate. It shows that the review application was presented by the petitioner and his son on the 23rd of July 1960, against the order of the Custodian (Annexure J). A certified copy of the order J which was sought to be reviewed, was attached to the application. There is nothing on that record to show as to how the petitioner and his son came to know of the order J. The report on the summons is that it was not served on the son as he was at that time in Dacca. Mr. Sayeed A. Shaikh suggested that from the endorsement which is at the back of the summons one could infer that it was made by an inmate of the house and that the same person who made the endorsement could have given information of it to the petitioner as well as to his son. Moreover, as the endorsement can be taken to have been made by an inmate of the house, the Custodian could have treated it, according to counsel, to the sufficient service on the son and could have proceeded ex parte to make the order (Annexure J) without specifically saying so. If these conjectures are correct then the tenant can be legally taken to have been duly informed of the proceedings and can be said to have intentionally abstained from participating in them. Mr. Dingomal took advantage of these possibilities for con tending that the order L' proves that the order J was not made without notice but that the petitioner has suppressed the order L' and alleged in his writ petition that the Custodian's Order (Annexure J) was made without notice.
26. We think that the contentions of both counsel are erroneous ; firstly, because the order L' itself shows that the review application was not dismissed because the service was held to be good, but on the ground that, no interest of justice was found likely to be served by reviewing it ; secondly, because service of the summons on an inmate of a house at Hyderabad could not be a good service on the party who was at that time in the ordinary course of his employment residing in a house at Dacca ; thirdly, the question of notice from the Custodian's Department to the petitioner does not arise, because the petitioner was not a party to those proceedings.
27. Mr. Dingomal did not attempt to meet the contention of Mr. Sohail that all the three orders (Annexures H, I and J) which are in favour of Mst. Chaturbai suffer from defects that are patent on the face of the record. Mr. Sohail has argued that the first order Annexure H) was made without notice to the tenant and in disregard of the provisions of limitation. We have seen that the address of the tenant given in the application of Mst. Chaturbai (Annexure G) was wrong and we believe that publication of notice in "Aftab" was not calculated to give notice of the proceedings to the. tenant. The objection of limitation to the maintainability of the application was so patent that Mr. Syed Riazuddin Ahmad noticed it by looking at the record, although no proceedings took place before him. As to the second order (Annexure I) Mr. Sohail pointed out that it was made without issuing notice to the tenant as well as on the assumption of wrong facts as explained by us in para graph 15 above. In the last order, J, there is self‑contradiction as noted by us above in paragraph 16. Mr. Sohail has further argued that delay could be condoned by the Custodian under section 5 of the Limitation Act only, therefore, he could do so, he was "satisfied" that there was sufficient cause for Mst. Chaturbai not making the application (Annexure J) within the period of limitation but the Custodian could not be satisfied of the sufficiency of the cause of delay because the order which he has confirmed (Annexure J) postulates that there was no question of limitation and because the order of Mr. Syed Riazuddin Ahmad in which the existence of the objection of limitation was pointed out had also left for further enquiry the determination of the commencement of the period of limitation and the cause of delay. We know from the record now that the period of limitation had actually commenced on the date of the first order which is the 29th of May 1951, (Annexure A‑1) but no date of commencement was determined by the Custodian. He therefore, did not know the quantum of delay. It was impossible for him to consider the sufficiency of the cause of unknown 'delay. We agree that where the quantum of delay is not known and therefore, the sufficiency or otherwise of the reasons for the delay cannot be Judged, there is no possibility of exercising the discretion to condone the delay.
28. Mr. Dingomal resisted the writ petition as a whole by advancing three legal arguments. He argued firstly, that the petition could not succeed because the last order made against the petitioner was the order, L' by which the review application of the petitioner and his son was dismissed by the Custodian but it has not been challenged by the petitioner, secondly, that this Court has no jurisdiction to grant the petition on the grounds which have been taken by and on behalf of the petitioner because they did not include the ground of absence of jurisdiction or failure to exercise jurisdiction ; and thirdly, that the petitioner has no interest in bungalow No. 14‑A, therefore, has no locus standi to come to this Court with this petition. He has no interest because the provisional transfer order (Annexure A‑1) was issued in his favour illegally and is disregard of the pro visions of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as pointed out by the Custodian in the order L'.
29. The first contention can be disposed of shortly, because Mr. Dingomal has cited no law in support of it and' Mr. Sohail has rightly pointed out that the order L' has no indepen dent existence. It would automatically lose its force if the order (Annexure J), against which the review application was dismissed, is held to be illegal. In support of this proposition he was able to cite an authority which is a judgment by Kaikaus and Faruqui, JJ. in Muhammad Ismail v. Rehabilitation Commis sioner (P L D 1960 Lah. 194). The learned Judges have observed in it as follows :‑
"Now, in the first instance, if the orders passed by the Additional Rehabilitation Commissioner were without juris diction and we set them aside, the subsequent orders of the Rehabilitation Commissioner, which were only in con firmation of those orders, automatically fall. In the second place, the petitioner should be deemed to be attacking the orders of the Rehabilitation Commissioner in revision also.
He had attached copies of those orders along with the petition."
The last part of the above observation is not applicable to the facts of this case because in this case neither the petitioner nor Mst. Chaturbai have referred to the order L' in their written submissions to this Court ; but as explained earlier, it suffers from more than one invalidating illegalities. As in our view the order I' itself is invalid, we attach no importance to the review application and to the order L' by which the application was dismissed.
30. In support of the second contention Mr. Dingomal explained that the law as it was before the present Constitution and not Article 98 of the present Constitution is applicable. We' agree with him in this view. Taking his stand on the concept of certiorari, he contended that such a writ could not be issued unless the tribunal, whose order is questioned, did not have the jurisdic tion to give that order, or had refused to exercise a jurisdiction which it possessed. He supported this contention by citing the judgments in Santosh Kumar Shah v. District Magistrate of Faridpur (P L D 1959 Dacca 738) ; Sardar Sher Muhammad v. Rao Bashir Ali Khan (P L D 1962 Lah. 172) ; Dyal Singh College Trust Society v. The Custodian of Evacuee Property (P L D 1962 Lah. 352 (356, 357)) and m Mst. Mahmooda Begum v. Chief Settlement Commissioner (P L D 1962 Lah. 911 (915)). In these judgments, these are observations which are helpful to counsel. As against them, Mr. Sohail has cited three judgments. In Grindlay's Bark Ltd. v. Murree Brewery Co. Ltd. (P L D 1954 Lah. 745), Muhammad Munir, C. J. and Ortcheson J. have pointed out at page 754
"in law a judgment or order, however, high or independent the tribunal delivering or making it and however, exclusive its jurisdiction, is a nullity if it be proved that it was obtained by fraud."
At page 755 the learned Judges have explained that as "fraud vitiates all proceedings" it is immaterial whether it is alleged before a Judge or otherwise "the issue whether the judgment was obtained by fraud properly comes before him", for it is the duty of the Court that has seisin of the case in appropriate cases "to recall suo motu an order procured by fraud" and remove its vicious result. In Ziaul Haq v. Government of West Pakistan (P L D 1956 Lah. 358), Kayani and Muhammad Sharif, JJ. have held at page 360 that
"certiorari will be appropriate to quash the decision of a tribunal which has assumed a jurisdiction that it does not possess, or where bias by interest or want of good faith is alleged, or where there is a breach of the rules of natural justice or where there is fraud and perjury."
In Feroze Din v. Government of West Pakistan (P L D 1961 Lah. 304) another Division Bench of this Court has referred at page 317 to misrepresentation and suppression of facts, and observed at page 318, as follows
"We think, therefore, that this is a case where the acquisition proceedings are vitiated by perjury and fraud, and liable to be quashed on that ground."
They have quoted with approval the passage which we have reproduced above from Ziaul Haq's case.
31. The above two sets of the statements of law brought to our notice by the opposing counsel are not irreconciliable if the expression "jurisdiction" is accepted to include "assumption and exercise of jurisdiction", because no authority can be said to have exercised its jurisdiction if it was prevented from knowing the true facts, if it took for a material fact what was not in law that fact; if it proceeded act in grave and obvious disregard of a material provision of law ; if it exercised a discretion without the existence of the situation in which it could be exercised ; if it violated the principles of natural justice when the law had not permitted it to do so, and if it gave reasons for its conclusions which could not, in those circumstances, rationally lead to‑ them. This is not an exhaustive list of those instances in which defective exercise of jurisdiction may be successfully pleaded but it is sufficiently elaborate for this case. In partial explanation and support of it we refer to English decisions in R. v. Recorder of Leicester, Ex Parte Wood ((1947) 1 A E R 928) ; R. v. Birmingham Compensation; Appeal Tribunal ((1952) 2 A E R 100) ; Rex v. Nat Bell Liquors Limited ((1922) 2 A C 128 (151,153,155)) Associated Provincial Picture Houses Limited v. Wednesbury Corporation ((1948) 1 K B 223) Ex parte Bradlaugh (3 Q B 1878 509 (512‑513)) ; and The Queen v. Kay ((1873) 8 Q B 324). We need not be exhaustive, because the judgments cited by Mr. Dingomal are not of a higher authority than the authority of the judgments cited by Mr. Sohail, and we find ourselves in agreement with the latter.
32. The third argument of Mr. Dingomal was met by Mr. Sohail when he pointed out, without giving attention to the argument itself, that the petitioner is in any event an occupant of bungalow No. 14‑A from 1948 and as such entitled that it should be transferred to him under the Schedule to the Dis. placed Persons (Compensation and Rehabilitation) Act, 1958. We note the fact stated by Mr. Sohail that other members of the family who could also claim this right have abstained from doing so in favour of the petitioner and here refer to the discussion in Rex v. Richmond Confirming Authority ((1921) 1 A C 248). The Earl of Reading, C. J., who delivered the judgment with the concurrence of Darling and Salter, JJ. has held in it, overruling the contentions of Sir John Simon, that a rival licencee
"had an interest in objecting to the license granted to another person) in the sense that he was the owner or licencee of property in the borough which he thought would be affected adversely by the grant of,"
the impugned licence and thus entitled to contend before the Court that it was granted by usurpation of jurisdiction. He referred to the proposition expressed by Blackburn, C. J. ir Forster v. Forster ((1863) 4 B & S 187,199) that
"although the Court will listen to a person who is a strange, and who interferes to point out that some other Court has exceeded its jurisdiction, whereby some wrong or grievance. has been sustained, yet that it is not ex debitio justitiae, built a matter upon which the Court may properly exercise it‑1 discretion, as distinguished from the case of a party aggrieved who is entitled to relief ex debitio justitiae, if he suffers from the usurpation of jurisdiction by another Court".
(pp. 254‑255, 1921‑1 K B)
and observed
"The question whether a person has a particular interest in the subject‑matter as distinguished from the interest which the general public has must always be a question of degree. Of course it may be that a person's interest is so slight that Court will not act upon it, but where, as here, it is substantial the Court is bound to issue the writ when it appears on the face of the order that there has been a wrongful exercise of jurisdiction in the sense of an excess of jurisdiction. The firs' point taken by Sir John Simon therefore fails." (Ibid 255‑56)
In this case we find that the petitioner has the locus stand' toy bring this petition.
33. In conclusion of all that has been said above, we accept the petition, and quash the main and basic orders which are the orders of the Additional Custodian (Judl.) dated 6‑4‑60 and the order of the Custodian dated 25‑6‑1960 the Annexures "I" and "J" to the petition. Respondent No. 3 will pay the costs of the petitioner.
A. H.
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