P L D 1978 Quetta 74

Before Mir Hazar Khan . J

TAUHEED-UN-NISA-Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER, BALUCHISTAN

AND ANOTHER---Respondents

(a) Displaced Persons (Compensation and Rehabilitation) Act

(XXVIII of 1958)

Se. 19 20---Appeal-Revision-Jurfhdlctiorr-Permanent Transfer Deed

issued by Settlement Authorities-Property goes out of compensation
pool Sunerain of Settlement authorities over such property, except to
very rare and exceptional cases, held, ceases. Appeal (civil) Revision
(civil)

Sadar Din v. Elahi Bakhsh another P L D 1976 Lah.1:Mst Hajiani

Fatima Bag and 6 others v. Ibrahlm and 13 others P L D 1972 Kar.610
Syed Mureed Hussain Shah v. Mufti Muhamonald Yousaf Ali and
another 1 S C 1974 S C M R 8 and Muhammad Shafi v. Mauj Din Khan
and 3 others P L D 1976 Lah.17 ref.

(b) Displaced Persons (compensation and Rehabilitation) Act

(XXVIII of 1958)
-- S& 19 & 20- Appeal-Revision-Jurisdiction-Transfer of property made
in open auction, approved by Additional Settlement commissioner, and
upheld by all superior authorities and such orders not disturbed by High
Court and Supreme Court in Constitutional petitioner-Order of transfer
in circumstances, held, could not be Bald to be void or non-existent.-
(Appeal (civil)--Revision (civil).

YOUSIF ALI v. Muhammad AsLAM Zia ,and 2 others P L D 1958 B C

(Pak.) 104 distinguished

(c) Displaced persons (Compensation and Rehabilitation)Act

(XXVIII of 1958)-

Ss. 20 & 9(3) read with Constitution of Pakistan (19773), Art. 203
Revision-Jurisdiction-Chief Settlement Commissioner devoid of
jurisdiction to entertain revision petitions alter 13th June 1962 Powers of
general superintendence and control under S. 9(3)-Not exercisable to
torte compliance of illegal order,-No allegations of fraud or
misrepresentation leveled against petitioner - Chief Settlement
Commissioner, lids devoid of jurisdiction to entertain or decide case in
revisional jurisdiction.-(Revision (civil)-Jurisdiction.

Mst. Safia Begum v Abdul Hamid P L D 1968 Lab. 1360 and Sadar Din
v. Elahi Bakhak and another P L D 1976 Lah. 1 held rot applicable.

A. S. Kazi v. Government of Pak and 6 others 1975 S C M R 191 rel.

(d) Displaced persons (Compensation and Rehabilitation)Act

(XXVIII of 1958)-
--Sched, para. 13 and Settlement Scheme No. VI-Transfer of open plots
on Expretion "permanent building" to be construed in its ordinary sense
and not In Wended sense purported to be laid down in Scheme No. VI-
Petitioner could be entitled to transfer of plots if proved to have raised
permanent building thereon but according to their own admission in P
form petitioner raising only kutcha structures-

Petitioners, in stances, held, not entitled to transfer of plots

(Words and phrases)

(e) Displaced persons (Compensation and Rehabilitation) Act

(XXVIII of 1958)-

Sched, para.13 & 14 read with Settlement Scheme No. VI and Chief
Settlement Commissioner Memo dated 17-11-1M (allegedly directing
transfer of plots having fire-wood stall, to occupants notwithstanding
nature of construction thereon)-Evacuee Sites Transfer of--
Memorandum dated 17-11-1960-No way authorises Settlement
authorities to ignore provisions of paras, 13 & 14-Memorandum merely
lays down method of evaluating sites containing fire-wood stalls for
purpose of transfer and does not authorise transfer to occupants
irrespective of nature of constructions-Memorandum even if supposed to
give such authority held, would be in violation of auras. 13 & 14 of
Schedule to Act XXVHI of 1958 and cannot be given effect to.

(f) Displaced persons (Compensation and Rehabilitation) Act

(XXVIII of 1958)-
-- Sched., pares. 13 A 14 read with Chief Settlement Commissioner's
memorandum dated 24-&1960 published in old Settlement Manuel, p.
153-Transfer of evacuee sites-No understanding given by petitioners to
pay average auction price plus 50% of pries as value of plot Application,
hence, not complying with requirements of memo. random -
Memorandum, even otherwise, against requirements of para 14 of
Schedule to Act XXV111 of 1958-Requitsement of law. held, to dispose
by unrestricted public auction all building sites not falling under para.
13. such requirement mandatory, and disposal by negation not
permissible unless unrestricted public auction falls in disposal of
properties.

Muhammad Amin v. Chief Settlement and Rehabilitation

commissioner,Karachi and others PLD 1966 Kar.61 ref

(g) Constitution of Pakistsan (1962)

--. Art. 98-Writ jurisdiction-Petitioner himself having no entitlement to

transfer of plot-Validity of sale In favour of respondent, held, mould not
be open to review on writ petition.-[writ]

(h) Constitution of Pakistsan (1962)

--- S. 11 read with Displaced Persons (Compensation and Rehabilita

tion) Act (XXVIII of 1958), S. I-Res Judicata--Transfer of plot in favour
of petitioner approved In writs of mandamus and certiorart-- Decisions
in writs, held operated as res Judicata or principles of ryes judicata
between two contestants and Chief Settlement Commissioner not
authorised to re-open question sad 1-averse edged issue.-[res judicata]
(i) Constitution of Pakistsan (1962)

-- Art. 204 --Contempt of superior Courts-Chief Settlement Com,

missioner having knowledge of decisions of High Court and Supreme
Court as appearing from his remark "I had absolutely no intention of
mating any observation op comments on judgments of the High Court
and the Supreme Court"-Chief settlement commissioner going beyond
his jurisdiction and giving finding on facts contrary to decision High
Court and Supreme Court-Impugned order also based on facts against
record-Record of case deliberately kept away anti withheld from
production before High Court on a very flimsy ground-Chief Settlement
Commissioner s order, held passed in clear violation of Constitutional
Provision and set a side

circumstances Show cause notice issued Calling upon Chief Settlement

Commissioner to show cause why contempt of Court proceeding be not
taken against him-(Contempt of Court).

S. H Jaffry and Iftikhar Ahmad for petitioner

Jafar Naim. for Respondent No.l

I. H.B Hanafi for Respondent No. 2.

Dates of hearing: 19th, 20th and 24th September 1971.

JUDJMENT
By this petition under Article 201 of the Interim Constitution of the
Islamic Republic of Pakistan the petitioner Mat. Tauheed-un.Nisa, an
auction purchaser of a plot, in. Quetta Town has assailed the order of the
Chief Settlement Commissioner/Member, Board of Revenue Baluchistan
and prayed that the said order be declared to have been passed without
lawful authority and thus is of no legal effect.

2. This petition emanates from the order of the Chief Settlement Com
missioner and Member Board of Revenue, Baluchistan dated (Nil)
October, 1"72, whereby he had cancelled the Permanent Cruder Deed in
respect of a plot of the petitioner and ordered its transfer to the
respondent No. 2.

3. The necessary fact leading to this petition-are that there is a plot

beating Lhasra No. 3547/7is53-3547/7854, situated on Shawak Shah
Road, Quetta. The respondent No. 2 Khudadad Khan, a Fuel Wood
dealer was and is in occupation of the premises since Partition of the
subcontinent, On 30th November, 1959, he had filed P -Form for
obtaining it. Before any decision in respect of the P-Form could be
taken, the Settlement Department by an open auction transferred the plot
to the petitioner on 13th October, 1960, the P-Porm was rejected.
However, subsequently on 2eth December, 1960 the P -Form. Earlier to
the auction of the plot, the Chief Settlement Commissioner had issued
directions that some plots including the plot in dispute, in possession of
the Fuel Wood dealers in Quetta Town should be transferred to their
respective occupants. But, before the compliance of the direction eras
made the Deputy Settlement Commissioner disposed of the plot to the
petitioner. However, compliance of the above said directions, the
Deputy Settlement Commissioner, ordered transfer of the plot in favour
of the respondent No 2 on 14th April 1961, and recalled the previous
provisional Transfer ordered issued in favour of the petitioner. The
petitioner being aggravated: submitted an appeal to the Additional
Settlement Commissioner, who cancelled the tatter transfer order and
maintained the former transfer in favour of the petitioner. The
Settlement Commissioner also upheld the decision of Additional
Settlement Commissioner on Ist July, 1965.

The respondent No. 2 filed writ petition in the High Court of West
Pakistan, which was dismissed on 27th July 1967. He then sought leave
for appeal before the Supreme Court of Pakistan, assailing the decision
of High Court, but, his this request was turned down on lot February
1968. The respondent No.1 then filed a declaratory suit in the Court of
Civil Judge, Quetta. which was dismissed. His appeal before the District
Judge, Quetta also failed.. In order to get rid of the spider's web the
petitioner instituted ejectment proceedings against the respondent No 2,
in the Court of Rent Controller, Quetta. who ordered respondents,
ejectment somewhere in September 1072.

However, some way or the other the respondent No. 2 eventually sued in
getting cancelled the Permanent Transfer Deed of the petitioner and got
the plot for himself by order of the Chief Settlement
Commissioner/Member, Board of Revenue. Baluchistan in October;
1972. This petition is directed against this order of the Chief Settlement
Commissioner, Baluchistan.

5. Mr. Iftithar Ahmed, learned counsel for the petitioner at the first in
state argued that after the Issuance of the Permanent Transfer Deed, the
Settlement Authorities became functus officio and had no authority to
cancel it. The contention is not without force. It 1s settled principle that
on the Permanent Transfer Deed is issued by the Settlement Authorities,
then the property go.,& out of the compensation pool. The suzerain of
the Settlement Authorities ceases over such property except in very rare
and exceptional case. In Sadar Din v.Elahi Baksh and another (P L D
1976 Lah. 1) it was held :-

"Permanent Transfer Deed issued, the Settlement Authorities became

functus oficio even if case be one of fraud or misrepresentation."

The same proposition were discussed in Mst. Hajiani Fatima Bai and 6
others v. lbrahim and 13 others (P I. 0 1972 Kar. 610), Syed Murried
Hussain Shah v. Maui Mwmmmad Yousaf All e'sd another (1974 S C
MRS) and Muhammad Shaft v, Matt/ Din Khan and 3 others (P L D
1976 Lah, 17)

6. Mr. 1. H. B. Hanafi repudiated the contention of the petitioner and

submitted that if the Permanent Transfer Deed was based on illegal
orders, then it shall be null and void for all the purposes and at all times,
and shall have no legal effect at all. Such Permanent Transfer Deed
could be amenable to jurisdiction of the Settlement Authorities. The
learned counsel relied on case of Yousaf Ali v. Muhammad Aslam Zia
and 2 others and Muhammad Aslam Zia and 2 others v. Yousaf Ali
(P.L.D 1S C 104) where it has been held that:--

"Where the Legislature clothes an order with finality, it always assumes

that the order which it declares to be final is within the powers of the
authority mating it, and no party can plead as final an order made i6
excess of the powers of the authority snaking it, in the eye of the law
such order being void and non-existent. And if on, the basis of a void
order subsequent orders have been passed either by the same authority or
by other authorities, the whole series of such orders, together with the
superstructure of rights and obligations built upon than, must, unless
some statute or principle of law recognizing as legal tare changed
position, of the parties is in operation., fall to the ground because such
orders have as little legal foundation as the void order on which they are
founded. On this view the orders made by the Rehabilitation Board and
the Central Government refusing to eject the respondents which were
based on that part of the Deputy ' Custodian s order which we have held
to be in excess of his jurisdiction were void and not final within the
meaning of section 13QB of the Rehabilitation Ordinance, and it was the
Rehabilitation Commissioner's order ditecting ejectment of the
respondents that became final in law."

7. The transfer in favour of the petitioner was made in open auction and
approved by the Additional Settlement Commissioner and upheld by all
the superior authorities. Even the same orders were not disturbed by
High Court, and Supreme Court iii constitutional petition. As such it can
not be ,aid that it was void or nod-eluietent order. Thotefore in my
humble, view this authority does not help silo learned counwL
Moreover, the facts of the instant case are quite different from the Not of
the above case.

8. The neat contention of Mr. lftikhar Ahmed was that later 13th of
January 1962, the revisional jurisdictional oaf the Chief" Settlement
Commis sioner was snatched away 1 thereafter he had no jurisdiction to
entertain certain or decide any case in revisional jurisdiction. He relied
on authority reported Muhammad Shaft and another v. The Chief Multan
and others (1974 S C M R 359), where it was held that, "the Chief
Settlement Commis sioner was devoid of jurisdiction to entertain
revision petitions after 1 June 1962. "feeling trapped in spiders web, Mr.
I. H. B Hanafi candidly C admitted the proposition that the Chief
Settlement Commissioner, hal no jurisdiction to entertain or decide
revision. 'the learned counsel. then stand that the Chief Settlement
Commissioner hall the General powers of Superintendence and control
under section 9(3) of the Displaced Persona Act of 1958. He said that
such powers were analogous to the powers of the High Court contained
in Attiele 102 of the old Constitution of 1962, in Article 205 of the
Interim Constitution of Pakistan of 1972 and in Article 203 of the
Constitution of 1973. He fortified his contention on the decisions of
cases reported in Mst.safia Begum v Abdul Hamid (P L D 1968 Lah.
1358)Karim Baksh Mst Mubarak jan (P L D 1970 Pesh. 169) Mst farida
pawin v Qadeerudin Ahmaed Siddiqi (P L 13 1971 Kar. 119),and Abdul
Rehaman v Mst chaman ara (P L D 1972 Kar 164) These authorities
have no bearing on the instant case. This proposition was the subject
matter of case reported in A.S Kazi v Government of Pakistan and 6
other (1973 S C M R 191). Where it was held that by no stretch of
imagination can the exercise of the power of general superintend and
control be extend to the force compliance of the illegal order . The chief
settlement commissioner himself been denuded of his revisional power
could not direct the settlement commissioner to person a case decided 10
years before, contrary to law and in obliging make a fresh order in
accordance with the good wishes of the chief settlement commissioner.

9.Even otherwise, in this present case, no allegations of fraud or sir

representation ace leveled against the petitioner for even arguments
aske. This authority A. S. Kazi v. Government of Pakistan and 6 other is
therefore quite relevant with circumstances of this case. There is nothing
on the record to show that the Settlement Authority had acted in excess
of jurisdiction of non-complied any provision of the relevant law.
10. The Member Board of Revenue, the respondent No.1.in reply
submitted that no representation will be made on behalf of the
Settlement Department. As regards the property file, it is stated that the
relevant record was handed over to Mr. farooq the then Reader and his
signatures in token of receipt thereof exists on the record. Mr, Parooq is
no more in service in Baluchistan and his whereabouts are not known,
The present Reader has intimated that the relevant record is not
traceable.

11. But in Court, Mr. Jaffar Maim, the learned counsel for respondent
No. 1 frankly conceded that, the Chief Land Commissioner, had no
revisional jurisdiction to pass the impugned order., but he submitted to
adhere to the objections raised by Mr. I.H.B. Hanafi It its therefore
established beyond shadow of doubt that the Chid Settipment
Commissioner had no power to entertain or decide the revision petition.

12. In eke out to whatever has been Shall be said here after for
elucidation of the issues, it ih parineat to reproduce certain extracts from
tile memo of Writ Petition No. 83/65, ( khudada Khan, Fuel Wood
Merchant, Quetta v. Dspaty Settlement an Rehabilitation Commissioner,
Qmata sand 3 ethers)here:---

(i) "That the so-called auction proceedings held by the respondent No. 1,
in respect of the property in question whereby the same weds illegally
transferred in favour f the respondent No. 4, and the subsequent adverse
orders passed by him, on the basis of the said proceedings, be declared
as having been taken and made without lawful authority.

(ii) That the orders dated 15-6-1963, and! 1-7-19636 panned by the
respondents loos. 2 and 3 respectively confirming the transfer of the
property in favour of the respondent No. 4. and cancellation of the
transfer documents of the applicant which had been issued to him in
rasped of the property in question in accordance with the law by
respondent No. 1, are also without regal authority, void and without
jurisdiction.

(iii) The respondents Nos.1--3 be directed to cancel the transfer

documents issued to respondent No. 4. and confirm the transfer of the
property in favour of applicant in accordance with the provisions of law.
or any other appropriate order directions be issued as deemed fit and
proper in the circumstances of the case, and cost of this application be
awarded in favour of the applicant against the respondent.

13. The reply of the Settlement Authorities was under:--

"1t is stated that no representation will be made in the above smatter on

behalf of the Settlement and Rehabilitation Department

Additional Settlement Commissioner,

(land) Karachi.

14. The High Court in its decision observed :--

"The plot in dispute in Writ Petition No. 85/65 bears No. 4547/1853154,
it measures 3909 sq.ft. and is situated on Shawak Shah Road. Quetta.

The petitioner Khudadad Khan held this plot since 7-10-48 and carried
on business of sale of fire-wood thereon, This petitioner also filed P-
Form with the Settlement ice on 30-11-1959. However, this Perform was
not considered and the plot was put to auction. This auction took place
on 13-10-1960 and thereafter on 28-101960 the petitioner's P-form was
rejected though the property already stood auctioned on this date. The
petitioner, however, did not file any appeal against the order rejecting
his P form. Notwithstanding the rejection of his P-form and the auction
of the plot which had taken place in favour of respondent No. 4 already,
the Deputy Settlement Commissioner transferred the plot on 22.2-1962
to the petitioner for which transfer a P. T. 0. was issued on 14-4-1962. It
may be mentioned that this auction wigs taken without canceling the P.
P.T.O. issued in favour of respondent No. 4. Respondent No. 4 then
gave notes to the petition for payments of rent and it was then that
petitioner came to know that there was a prior transfer of the plot in the
existence in favour of respondent No.4 respondent No.4 went in appeal
before the Additional Settlement Commissioner against the transfer of
the plot to the petitioner. This appeal was decided on 16-6-1973 The
Additional Settlement Commissioner cancelled the transfer in favour of
the petitioner but confirmed the transfer of the plot to the respondent No.
4 The petitioner s revision application against this order was dismissed
by the Settlement Commissioner on 1-7-1965.

Both the petitioners have attacked the orders of the Additional

Settlement Commissioner and the Settlement Commissioner, and the
transfers of the plots in dispute to respondent No. 1 in petition No 66/65
and to respondent No 4 in petition No 85/86 on several grounds. The
main point however which arises in both these petitions is whether the
two petitioners were at all entitled to the transfer of the disputed plots on
their p forma filed under Settlement Scheme No VI. The relevanl
provisions for the transfer of building after are paragraph 13 and 14 of
the Schedule to the displaced persons (Compensation and Rehabiliation )
act, 1958 and a Settlement scheme No. VI framed under this Act Under
Para. 13 of the Schedule an avacuee building aite may be transferred to a
 claimant displaced person or a non-claimant displaced persons or a local
if such a person has raised a permanent building there com on payment
of the market value of the point at the time of the allotment the transfer
to an unauthorized occupant is also made permissible provided such a
person pays a price equivalent to market value plus 50% of this value.
Para 14 provides that all building sites not falling under para 13 shall be
soid to the highest bidder in an unrestricted auction.

Settlement Scheme No VI by para 3 purports to define permanent

building as follows.

(3)Permanent building means

(a) Abuilding constructed under a plan approved by the public works

department of the Central Government of West Pakistan Municipal
Corporation or committee Cantonment Board Improvement trust or any
other local body authorised by Government in this behalf or
(b) A building constructed without such an approved plan, but
subswquently approved by a competent authority or
(c) A building for which plan has not been approved by a competent
authority but which has been constructed with building material
normally used in the non evacuee buildings in the locality where it is
situated and covers at least one fourth of the area of the relevant building
site or seventy five per cent. Of the maximum area allowed for
construction under the rules framed by the local body concerned
(d) Any other construction or class of construction which may be declared
by the Chief Settlement commissioner as permanent building provided
that a Deputy Settlement Commissioner may after adding an area not
exceeding thrice the area comprised in a permanent construction and
transferring it to the occupant according to prescribed terms dispose of
the rest throuth unrestricted public auction

With regard to this provision their Lordships of the Supreme Court

have observed in the case of Mst.Mahmoods Tashin v. Settlement and
Rehabilitation Commissioner and others (P L D 1965 S C 618) that
definition of permanent building in Scheme No. VI is not consistent with
pare. 13 of the Schedule to the Displaced Persons Compensation and
Rehabilitation Act, 1958, and that the words in para. 13 should be
presumed to be used in ordinary sense. Therefore the expression
"permanent building" should be construed in its ordinary sense and not
in the extended sense which Scheme No. VI purport, to lay down.
Accordingly, if the petitioners have raised permanent buildings on the
two plots, they would be entitled to the transfer thereof. But their own
admissions in the P-form filed by them go against the contention that the
two petitioners constructed permanent buildings on the plots. The
petitioner in Petition No. 66/65 stated under Item 12 of the prescribed
application that he bad raised only two "Kucha rooms and compound
wall" on the plots. The petitioner in Petition No. 85/65 likewise stated
that only one kacha room and a Kitchen and been raised on the plot held
by him. Thus, the petitioners) own case Is, as made out in their P-forms,
that there ore only kacha construc tion ore the disputed plots, and as
such they could not be held to be entitled in any way to the transfer of
these plots, But it is contended that on 17-11-1960 then Chief Settlement
Commissioner issued a direction to transfer all the plots on which
firewood stalls were situated to the occupants not withstanding the
nature of the construction thereon. A copy of this memorandum has been
filed in both the petitions. We have carefully looked at this
memorandum and find ourselves in disagreement with the learned
council that this memorandum in any way authorities the Deputy
Settlement Commis sioner to Ignore the provisions of paras. 13 and 14
of the Schedule to the Act for the disposal of evacuee building sties. The
memorandum does not say that transfer of sites on which firewood stalls
were situated should be made irrespective of the nature of the
construction thereon. The memorandum merely lays down the method of
evaluating the value of such plots for the purpose of transfer. In any
case, this memorandum, If It purports to authorise the Deputy Settlement
Commissioner to transfer these plots to persons who had merely raised
kacha construction thereon, would be in violation of the provisions of
the Schedule to the Act and cannot be given effect to.

It was then argued that it was not the requirement of law that evacuee
building sites not falling under para. 13 of the Schedule should be put to
unrestricted public auction. In this connection reliance was placed on a
memorandum issued by the Chief Settlement Commissioner on 24-6-
1960, and published on page 153 of the old Settlement Manual. It is
provided in this memorandum that if any person submits an application
for deletion of a particular building site from the auction list and gives
an underrating to such application that he is prepared to pay the average
auction price plot plus 30% of such price, he may be treated to be
eligible for the transfer of the site by negotiation. Mr. Yakoob, the
learned counsel for the petitioner in Petition No. 85/65, asserted that
such applications were made by his client to the Settlement
Commissioner. Copies of these applications have been filed as
Annexures 8, 10 and 11. But there is no undertaking in these
applications 8 that the petitioners would pay the average auction price
plus 50 % of the price as value of the plot. The application, therefore,
does not comply with the requirements of the memorandum dated 24-6-
1960. Even otherwise, this memorandum is against the requirements of
pare. 14 of the Schedule. The requirement of the law is that buildings
sites not falling under para. 13 should be disposed of by unrestricted
public auction. As held in Muhammad Amin v. Chief Settlement and
Rehabilitation Commissioner, Karachi a others (P L D 1966 Kar. 91),
this is a mandatory requirement; and disposal by negotiation is not
permissible unless unrestricted auction fails In the disposal of evacuee
properties.

It was then contended that the plot in Petition No. 85/65 was auctioned
without disposing of the P-form of the petitioner. It may be so, and if the
petitioner could show a good prints facie case before us that he was
entitled to the transfer of the plot, there would be good ground for
remanding the case to the Settlement Authorities for fresh adjudication.
However, on the petitioners' own admissions that there are merely
"Kacha" constructions on the plots there does not appear to be any
possibility of the plots being transferred to the petitioners. The argument
that the auction, without disposing of the P-form, is not valid, is only
academic In the circumstances of this case. We do not, therefore,
consider it necessary to remand the case to the Settlement authorities
when the petitioners themselves admit that they did not raise any
"permanent building" on the disputed plots. Mr. Yaqoob the learned
counsel for the petitioner in Petition No. '85/65, further contended that
he was deprived of the right of participating in the auction of the plot in
question. We may frankly confess that we have not been able to
appreciate this argument. It is not his case that the auction list was not
duly advertised. The advertisement of the auction list is notice to all the
persons who may desire to participate in the auctions of evacuee
properties. We do not therefore, agree that this petitioner was in any way
deprived of the right to take part in the auction of this plot.
In the result, both the petitions fail and are accordingly rejected with
costs."

15. The Supreme Court armed the. decision of the High Court with
observations ;-

"Aggrieved by the aforesaid orders the petitioner moved the High Court
under Article 98 of the Constitution contending that before the plot in
his occupation was sold by auction to the respondent No. 44 the
Settlement and Rehabilitation Commissioner had on his representation
issued a stay order and that the transfer in his favour having received the
sanction of then Chief Settlement and Rehabilitation Commissioner was
not open to interference by the subordinate settlement authorities. Both
the contentions were ruled out by the learned Judges as the petitioner
bad admittedly not put up any permanent construction on the plot to
which he laid claim and under the settlement scheme was not entitled to
its transfer. The learned Judges also did not consider that the
memorandum issued by Settlement and Rehabilitation Commissioner
Quetta, was intended to override the provisions of parts. 13 and 14 of the
Schedule to the Displaced Persons (Compensation and Rehabilitation)
Act. The writ petition was, accordingly, dismissed from which the
petitioner seeks leave to appeal.

On hearing the learned counsel we find ourselves in agreement with the

Settlement Authorities and the view formed by the learned Judges in the
High Court that the memorandum dated the l7th November, 1960,
Issued by the Secretary Urban to the Settlement Commissioner and
Rehabilitation Commissioner, Quetta, did not authorise any departure
from the Settlement Scheme No. VI. The petitioner admittedly not put
up any permanent construction on the plot was therefore not entitled-to
its transfer. In the absence of any entitlement for transfer, petitioner had
no locus stands to move in the matter.

As to the stay order issued before the plot in dispute was sold by public
auction to the respondent No. 4 we find that Annexure "R's" at pages 28
and 29 bears a note by the Deputy Settlement and Rehabilita tion
Commissioner dated the 4th October, 1960, recommending that the
evacuee plots in the occupation of fuel wood merchants who are mostly
locals and non-claimants may be sold to them at the prevailing market
price plus 50 per cent. The Additional Settlement & Rehabilitation
Commissioner forwarded the proposal to the Settlement Commissioner
suggesting that in the meantime auction of the plots may be withheld.
The proposal was approved by the Settlement Commissioner on 5.10-
1960. The Deputy Settlement and Rehabilita tion Commissioner again
put up a note on 7-10-1960 that auction of plots may be withheld and
these plots may be deleted from the list immediately which was initialled
by the Additional Settlement and Rehabilitation Commissioner on 8th
October, 1960. What happened after the 8th of October, 1960, is not
known except that on 13th October, 1960, the auction was held and the
plot in dispute was sold to the respondent No. 4 for Rs. 12.600. The
officer incharge of the auction being none other than the same Deputy
Settlement and Rehabilitation Commissioner it does not stand to reason
that if the auction of the plot in dispute was stayed on 8-10-1960 why no
effect was given to it. Further after the suction was held the sale in
favour of the respondent No. 4 was approved by the Additional
Settlement and Rehabilitation Commissioner and a permanent transfer
deed also issued in her name. These circumstances lead to the
conclusion that either the stay order did not pertain to the plot in dispute
or that the stay order issued before the 13th October, 1960, was
subsequently counter-mended. However, as mentioned above, the
petitioner himself having no entitlement to the transfer of the plot in
dispute the validity of, the sale in favour of the respondent No. 4, was
not open, to review in the writ petition.

For the foregoing reasons this petition has little merits and we hereby
dismiss it."

In the earlier portions of the judgment, it has been held that the transfer
in favour of the petitioner was approved as is evident from the result of
the constitutional petition. These writs being of mandamus and certiorari
their decisions may operate as res judicata or guiding principle of res
judicata between the two contestants. The respondent No. 1 had no
power or authority to have reopened it and reversed the Judged issue.

16. To analyst the impugned order, in juxtaposition with the decision of

the High Court and Supreme Court, it is reproduced here ;----

"I have considered the case very carefully and have also gone through
the case law relied upon by the petitioner. I have come to the conclusion
that :---

(a) In view of stay order dated 5-10-1960 granted by the Addl.

Settlement Commissioner, all subsequent proceedings taken by
Settlement Authorities are void and are of no legal effect. It seems that
the legal aspect of the case was not brought to the notice of ties Honble
High Court. Hence all proceedings including the auction were illegal.
The same view was held in the cases reported in P L D 1958 S C (Pat.)
104 and P L D 1964 S C 101.
(b) The petitioner's plea that the auction was not approved not it could
have been approved) by the learned Additional Settlement Commis
sioner has also considerable force. The auction remains unapproved
even today. The matter of transfer exclusively lies within the jurisdiction
of the Settlement Authorities. The result is that the auction without
having been approved stands nullified.

For these reasons, I hold that the auction of the stall was illegal. I
therefore accept the petition and order transfer of the disputed plot to
petitioner as ordered on 17-11-1960 by my predecessor."

It is evident from the order that the respondent No. 1 was in know of the
fact that the matter was finally adjudicated by the superior Courts of
Pakistan. Hut he lightly surpassed these decisions with a tenuous
remark, that. "It seems that the legal aspect of the case was not brought
to the notice of the Hon'ble High Court."

17. On passing the anomalous order, a notice from this Court was issued
to the Chief Settlement Commissioner, Baluchistan, who submitted his
explanation as under;---

"The petitioner invoked the special jurisdiction of this Tribunal under

section 9(3) of the Displaced Persons Act (XXVIII of 1958 whereby the
Chief Settlement Commissioner enjoys powers of superintendence and
control over the subordinate Tribunal on the administrative as well as
judicial side. The said powers are analogous to the powers of the High
Court contained in Article 102 of Old Constitution of 1962, Article 205
of the Interim Constitution 1972 and 203 of the Constitution of 1973. "
Now it is a settled law that the words "Supervision and Control"
wherever they are used, carry the same meaning i. e. to exercise
administra tive as well as judicial control over the subordinate Courts
and where there is no other remedy available under the ordinary law of
the country, this power can be invoked to correct or revise all
proceedings, orders and judgments of the subordinate Courts and in
suitable cases direct orders can be passed sue mote by this Tribunal. This
Tribunal assumed the special jurisdiction in this case as it was satisfied
that gross injustice had been done to the petitioner due to illegalities
committed by the Assistant Settlement Commissioner and Deputy
Settlement Commissioner, Quetta in auctioning the property under
di6pute in spite of the stay order issued by the Additional Settlement
Commissioner, Quetta whereby be had restrained the Deputy Settlement
Commissioner from auctioning the property tide his order dated 5-10-
1960 made on the joint application of the petitioner and others dated 3-
10-1960 for the transfer of the fire wood stalls in their possession. The
Deputy Settlement Commissioner on 7-10-1960 directed his office much
before the Actual auction date in the following words :----

"The auction of the plot in possession of fire wood merchants may be

withheld and the plots deleted from list of plots."

But in spite of the stay order of the Settlement Commissioner dated 5-

1C-1960 which was duly noted by the Deputy Settlement Commissioner
on 7-10-1960 and despite the transmission of report dated 8-10-1960 by
the Settlement Commissioner to the Chief Settlement Commissioner, the
said plot was auctioned on 13-10-1960 while the P-Form of the
petitioner was still pending disposal on merits and it was only on 28-12-
1960 I.e. much after the auction date that the P-Form of the petitioner
was rejected by the Deputy Settlement Commissioner without affording
an opportunity of being heard although in the meanwhile the Chief
Settlement Commissioner under his order dated 17-11-1960 bad
approved the Scheme of transfer of plots to the stall holders. Hence it is
evident that the order of Deputy Settlement Commis sioner during the
subsistence of the stay order by the Settlement Commissioner regarding
auction of the property was a nullity and without jurisdiction and
therefore, ail orders confirming the illegal orders have no footing to
stand and fall down alongwith the original void order.

It can be very clearly concluded that the order of the Deputy Settlement
Commissioner auctioning the property despite the stay order from the
Settlement Commissioner has created misapprehension in the mind of
the Settlement authorities and they failed to note that the auction was
illegal and without jurisdiction and as such there was nothing to confirm.

Now it is quite clear that the order of the .D. S. C. auctioning the
property in spite of the stay order was a nullity and the orders passed to
confirm It could not cure the inherent defects of voidness and even if it
is passed by the Honourable Supreme Court it can be ignored by a Civil
Judge of the Third Class.

I would furthers submit that my predecessor, the Chief Settlement

Commissioner, Lahore, in an analogous case of Bano Market of Quetta
despite the failure of one Ghulam Hyder on the judicial side upto the
High Court, was pleased to order the transfer of the plot in his favour in
accordance with the provisions of Settlement Scheme No. VI with
respect to Plot No. 2756 bearing No. 2-31/9, 10, Quetta by his order
dated 2-2-1967. A true Copy of the said order was produced before me
by the petitioner which is on the record and which has not so far been
challenged on this ground.
It has been wrongly asserted by Mat. Tauhaidun Nisa that the judgment
of this Tribunal was undated. It was clearly dated as 21st October, 1972
and there appears to the some misapprehension about the date of the
order.

1n these circumstances, after going through the case-law referred to

above. I came to the conclusion that the Chief Settlement Commissioner
has the authority to go into the question of entitlement of the petitioner
to the property in dispute. I therefore decided the matter according to my
understanding of the legal position. I had absolutely no intention of
malting any observation or comments on the judgments of the High
Court and the Supreme Court. I would however, request for apology if
my order has created such an impression.

18. Whatever the case may be, but it is quite evident from the record that
the Chief Settlement Commissioner had the knowledge of the decisions
of the High Court and Supreme Court. He has intentionally used the
words "I bad absolutely no intention of making any observation or
comments on the judgments of the High Court and Supreme Court" in
his order The words "I had absolutely no intention of making any
observation or comments", have significant meaning. These words have
been used to shadow the real Intention of the respondent No. 1 who was
bent upon to favour the respondent No. 2 in any way and whatever the
consequences may come thereafter.

19. Now averting to the reasons advanced by the Chief Settlement

Commissioner, Baluchistan by which, he had passed the impugned
order, in spite of the decisions of the High Court and Supreme Court, I
have to appraise the grounds mentioned therein. His first ground was
that in presence of stay order dated the 5th October, 1960 of the
Additional Settlement Commissioner, all the subsequent proceedings
taken by the Settlement Authorities were void and of no legal effect.
According to him, this aspect of the case was not brought to the notice of
the High Court and Supreme Court. But the decision of the Supreme
Court categorically contains that :---

"'As to the stay order issued before the plot in dispute was sold by public
auction to the respondent No. 4' we find that Annexure " (7" at pages 28
& 29 bears a note by the Deputy Settlement & Rehabili tation
Commissioner dated the 4th October, 1960, recommending that the
evacuee plots in the occupation of fuel wood merchants who are mostly
locals and non-claimants may be sold to them at the prevailing market
price plus 50 per cent.

The Deputy Settlement and Rehabilitation Commissioner again put up a

note on 7-10-1960 that auction of plots may be withhold and these plots
may be deleted from the list immediately which was Initialled by the
Additional Settlement and Rehabilitation Commissioner on 8th October,
1960. What happened after the 8th of October, 1960, is not known
except that on 13th October, 1960, the auction was held and the plot in
dispute was sold to the respondent No. 4 for Rs. 12,600. The officers
incharge of the suction being none other than the same Deputy
Settlement Commissioner and the Additional Settlement and
Rehabilitation Commissioner, it does not stand to reason that if the
auction of the plot in dispute was stayed on 8-10-1960 why no effect
was given to it. Further after the auction was held the sale in' favour of
the respondent No. 4 was approved by the Additional Settlement and
Rehabilitation Commissioner and a permanent transfer deed also issued
in her name. These circumstances lead to the conclusion that either the
stay order did not pertain to the plot in dispute or that the stay order
Issued before the 13th October, 1960, was subsequently
countermanded."

20. The second objection which gave cause to the respondent No. 1 to
pass the impugned order was that the suction was not approved at all and
it remained unapproved up to that day. The order dated nil, of the
Additional Settlement Commissioner, Hyderabad, clearly indicates that
the auction proceedings were duly approved and the provisional transfer
order was issued to the appellant on 6-12-1960, after she had paid the
auction price in full. The Court in his judgment has clearly given finding
that the auction was held and the sale in favour of the appellant was
approved by the Additional Settlement Commissioner.

21. Having these findings on the record it can hardly be said that the
auction was not approved. The both grounds of the Chief Settlement
Commissioner, Baluchistan appear to be fallacious and male fide. In my
view, these decisions of the superior Courts on the findings may operate
as res-Judicata, as already discussed above and it was beyond the
jurisdiction of the Chief Settlement Commissioner to have given
findings on the facts contrarily tot the decisions of High Court and
Supreme Court. The impugned order is based on facts against the record,
and the decisions of the superior Courts and this Court in writ
jurisdiction has jurisdiction to scrutinize the case as has been held in
Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul
Ghana and another (P L D 1975 Kar. 342), it bas been held that ;----

"In Pakistan, the power to issue writs stricto sense does not exist after
1958, and such writs have been replaced by a ell-defined jurisdiction to
declare an order to have been made without lawful authority and as
being of no legal effect. Still, the principles governing issue of writs are
in substantial pattern adhered to. The doctrine of audi alteram partern
though not finding a place in Article 201 of the 1972 Constitution or
corresponding documents is time-honoured in Pakistan. Similarly, the
doctrine of examination of jurisdictional facts or collateral facts which
provides power to a Tribunal of limited jurisdic tion, is besides being
capable of being read in constitutional provisions, even otherwise
jealously guarded. The words "without lawful authority" clearly
postulate an enquiry into the question of assumption of jurisdiction and
exercise of powers. It would otherwise be impossible for 'a Court to
determine the jurisdictional and collateral facts unless the facts are
examined, at least broadly and determination of such facts is a necessary
exercise for coming to the conclusion whether an act has been done with
or without lawful authority. Such examination has as of necessary to be
on the basis of existence of requisite powers before the same are
exercised. The Courts have to guard against the usurpation of
jurisdiction and such functions are incapable of fulfilment except upon
the assumption that powers of judicial scrutiny, even of disputed facts in
so far as the same relate to power, inhere. The latest pronouncement in
such regard is in the judgment of my Lord the Chief Justice Hamoodur
Rahman in the case of Raunaq Ali and others v. Officer on Special Dur;
P L D 1973 S C 236 in which judgment the point is stated as follows;----

It is now well-established that where an inferior tribunal or Court has

acted wholly without jurisdiction or taken any action 'beyond the sphere
allotted to the tribunal by law and, therefore, outside the area without
which the law recognizes a privilege to err'', then such action amounts to
a 'usurpation of power unwarranted by law' and such an act is nullity ;
that is to say, 'the result of a purported exercise of authority which has
no legal effect whatsoever'. In such a case, it is well-established that a
superior Court is not bound to give effect to it particularly where the
appeal is to the latter's discretionary jurisdiction. The Courts would
refuse to perpetuate, in such circum stances, something which would be
patently unjust or unlawful."

22. The record of this case has been deliberately kept away from this
Court on a very flimsy ground, that Mr. Farooq the clerk concerned was
not in service. Therefore, the relevant record was not traceable.

23. In view of the circumstances, I can very well smell fishy with the
Settlement Authorities, who in order to shroud the misdeeds of the Chief
Settlement Commissioner has misplaced the record. It has left a very bad
taste in my mouth. Any how, there is sufficient material before this
Court to show that the plot in dispute was properly transferred to the
petitioner. But by the impugned order, the respondent No. 1 had illegally
transferred it to the respondent No. 2 and there can be no other opinion
for it.

24. For the foregoing reasons, I have reached the conclusion that the
respondent No. 2 had no power to cancel the Transfer Deed of the
petitioner. The Impugned order it, therefore, declared to have been
passed without lawful authority.

25. 1n spite of the decisions of High Court of West Pakistan and

Supreme Court of Pakistan, the respondent No. 1 passed the impugned
order male fide and quite contrary to the findings of the High Court and
Supreme Court. His order seems to have been passed in clear violation
of the provisions of Articles 98 and 201 of the Constitution of the
Islamic Republic of Pakistan of 1973. The impugned order speaks itself
so. A show-causal notice of three weeks may be issued to Captain Saleh
Mohammad Khan the then Member Board of Revenue/the Chief
Settlement Commissioner. Baluchistan, as to why contempt proceedings
should net be taken against him. In case the explanation is not received
within the specified time, the proceedings shall be proceeded ex parts. A
copy of this order be sent to the learned Advocate-General to assist the
Court in dealing with the contempt proceedings.

26. In result, the petition is allowed. The impugned order is declared to

have been passed without lawful authority. The respondents are ordered
to bear the cost of the proceedings.

S. A. H. Petition allowed.