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Petitioner: Major ((Retd.) BARKAT ALI and otherss VS Respondent: QAIM DIN and otherss
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Rana Bhagwan Das, Shakirullah Jan Title: Major ((Retd.) BARKAT ALI and otherss vs QAIM DIN and otherss Case No.: Civil Review Petitions Nos.88, 106 and 127 of 1998 in C.A. No,1203 of 1996 Date of Judgment:2005-02-08 Reported As: 2006 SCMR 562 Result: Order accordingly
JUDGMENT
JUDGMENT ' RANA BHAGWANDAS, J.--- Petitioners seek review of the judgment of this Court in Civil Appeal No,1203 of 1996 filed by Qaim Din and others against Major (R) Barkat Ali and others decided on 4- 7-1998. 2. Evacuee land measuring 2 Kanals, 2 Marlas out of Khasra No,4551/271 Kharian was allotted to Abdul Aziz, predecessor-in-interest of respondents Nos.2 to 21 in C.R.P. No,106 of 1998 on 15-9-1960 whereas land measuring 4 Kanals out of same Khasra numbers was allotted to Boota, predecessor-in-interest of petitioners in the above-said review petition. Total area of this Khasra number, recorded in special Jamabandi for the year 1946-47 as Ghair Mumkin, is shown to be 32 Kanals, 16 Marais owned by evacuee Mangal Singh. On his part, Boota sold land measuring 4 Kanals to Mst. Hajira Begum wife of Chaudhry Manzoor Ellahi-respondent No,27 in C.R.P. No,88 of 1998 in the year 1962. In the year 1963, a combined auction list of shops, open plots and houses was published by Deputy Settlement Commissioner, Gujrat wherein houses and shops at Serial No,1/1 to 1/15 owned by evacuee Mangal Singh were detailed as demolished properties. The location of such properties and names of the evacuee owners were mentioned in the list along with a note that properties Nos.1/1 to 1/15 comprising Khasra No,4551/271 measuring 32 Kanals, 16 Marlas were situated between G.T. Road and Railway Station Kharian as pointed out by Halqa Patwari. However, in the bid sheet, placed on record by petitioner-Major (R) Barkat Ali, two Khasra numbers i,e, Khasra Nos.4551 and 4550 were reflected without indicating the total area of the Properties Nos.1/1 to 1/15 as well as both the Khasra numbers. The auction was conducted on 29-1-1963, in which highest bid of Rs,90,000 offered by petitioner-Major (R) Barkat Ali, was noted as against reserve price of Rs,1,32,900, subject to the condition that the property had not been disposed of earlier. It appears
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that before the confirmation of auction proceedings, a letter dated 31-7-1964 was addressed by the Settlement Commissioner (Policy), Lahore to the Additional Settlement and Rehabilitation Commissioner, Rawalpindi, with a copy endorsed to Major (R) Barkat Ali, reflecting that initial bid of Rs,90,000 in respect of plot bearing Khasra No,4551/271 was less than its reserve price, hence it was ordered that if he was prepared to pay the reserve price, the plot should be given to him, otherwise, it should be re-auctioned in small plots. Pursuant to the above direction, Deputy Settlement Commissioner, Gujrat, by his memo. Dated 12-8-1964, called upon petitioner Major (R) Barkat Ali to intimate within a week's time whether he was prepared to pay reserve price of the above-noted plot bearing Khasra No,4551/271 Kharian otherwise the same would be re-auctioned in small plots. On his part, petitioner intimated his acceptance with a request to issue appendix but reserving his right to question the reserve price at an appropriate time whereupon, Deputy Settlement Commissioner, Gujrat vide memo. Dated 28-8-1964 informed him that appendix could only be issued on unconditional acceptance of the reserve price communicated to him in respect of plot bearing Khasra No,4551/271 Kharian, who subsequently, communicated is unconditional acceptance of the reserve price. Resultantly, P.T.O. No,49, dated 6-10-1964 was issued in his favor with the particulars of the property surprisingly indicating two Khasra numbers in the schedule of property as under:-- "Properties Nos.1/1 to 1/15 Kharian (Khasra Nos. 45504551/271)." ' This was followed by Permanent Transfer Deed, dated 17-1-1967, without however, reflecting any Khasra number. Particulars of the property noted in this document were recorded as under:-- " Plots Nos .1/1 to 1/15 Kharian transferred permanently in favor of Chaudhry Barkat Ali son of Chaudhry Muhammad Khan of Lalamusa." 3. In April, 1970 when auction-purchaser approached the Deputy Settlement Commissioner for demarcation of the plot and ascertaining correct area of land sold out to him latter vide memo. Dated 31-8-1970 required him to pay a sum of Rs,12,200 within a week's time as Khasra numbers for which P.T.O. Had been issued to him covered an area of 72 Kanals, 11 Marlas and the transfer price worked out to be Rs,1,45,100 whereas he had paid a sum of Rs,1,32,900. It was specifically noted by this Court in the judgment under review, that it was a communication in which Khasra No,4550/271 was consciously shown as one of the Khasra number transferred to the petitioner indicating the area transferred as 72 Kanals, 11 Marlas and called upon Major (R) Barkat Ali to show the original P.T.D. But it was not produced during the hearing of the appeal, which continued from 12-6-1998 to 18-6-1998. It may be pertinent to note that even uptil pronouncement of the judgment on 4-7-1998, original P.T.D. Was not produced in Court. 4. When petitioner approached Tehsildar Kharian for mutation of the record in his name, it was declined presumably because Deputy Settlement Commissioner, Gujrat vide memo. Dated 19-11- 1970 had desired that the property in question i,e, 6 Kanals, 2 Marlas may not be allotted or proposed to any other person and if it had already been allotted desirability of its cancellation to be gone into. The factum of allotment of 6 Kanals, 2 Marlas, as agricultural land came to the notice of the petitioner during the proceedings for attestation of mutation, as Tehsildar Kharian remarked that attestation of the mutation of above-mentioned allotment be got reviewed. Petitioner preferred an appeal against the said order but the same was held to be infructuous vide order dated 22-7-1971 for the reason that Transfer Deed had not been given effect. On 28-1-1973 Sadar Qanungo made a report that proceedings under Sessions 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 be taken but the Additional Settlement Commissioner, Gujranwala, by order, dated 24-6-1975, refused to interfere on the ground that allotment having taken place as agricultural land on a date earlier to the auction, allotment of the land, could not be set aside. Barkat Ali challenged this order in Writ Petition No,625/R of 1975 before the Lahore High Court on the premises that Revenue Authorities had no jurisdiction to refuse to sanction a mutation as the
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property was purchased by him in open auction and that in any case allotment of land in favor of Abdul Aziz and Boota, as agricultural land, was unlawful for the reason that factually the land was not agricultural property. This writ petition was accepted with the observation that omission on the part of competent authority to decide about the nature of the land was without lawful authority. The case was, therefore, sent back to an officer authorized to exercise jurisdiction both under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act, 1958 in terms of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 to determine if the land in question was governed by one Act or the other. On remand, Settlement Commissioner (Land), Rawalpindi Division held that land measuring 6 Kanals, 2 Marlas transferred to Abdul Aziz and Boota had been validly allotted under Displaced Persons (Land Settlement) Act, 1958 and could not have been subsequently included in the auction under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and stood excluded from the property transferred to the auction-purchaser. This order was challenged by the auction- purchaser in Writ Petition No,1354/R of 1976, which was accepted vide judgment dated 6-6-1994, observing that the issue, on which the case was earlier remanded by the High Court to the Notified Officer, had not been decided in accordance with law and shall have to be decided afresh. The case was, therefore, remanded to the Member, Board of Revenue (Settlement), Lahore for entrusting it to an officer authorized to exercise jurisdiction under both the Acts, as directed earlier. C.P.L.A No,1204/L of 1994, against this judgment was filed in this Court but leave to appeal was refused on 9-4-1996. In post-remand proceedings. Additional Commissioner (Revenue/Settlement Commissioner Gujranwala, Division vide order, dated 25-1-1995 held that land comprising Khasra No,4551/271 measuring 32 Kanals, 16 Marlas was not agricultural land and was rightly auctioned and transferred as building site. Resultantly, allotment of this piece of land was cancelled, which was challenged by petitionersQaim Din and others being the legal representatives of deceased Boota in Writ Petition No,86/R of 1995, which was, however, dismissed in limine vide order, dated 9- 4-1995. Another Writ Petition No,71/R of 1996, challenging the same order, filed by Muhammad Asghar and others, was sub judice when Qaim Din and others challenged the order of dismissal of their writ petition through petition for leave to appeal before this Court, which was granted, while recording the submissions of the parties' counsel and the observations as under:-- "The principal ground on which leave is sought is that no notice of the proceedings before the Settlement Commissioner was given to the petitioners and the Settlement Commissioner's order is, therefore, a nullity in law. For this contention reliance is placed upon Syed Zulfiqar Ali Shah v. Ch. Muhammad Hassan PLD 1971 Lah. 108. Raja Muhammad Anwar, Advocate who appeared for the first respondent was of the view that in the facts of the case, no hearing was necessary to be afforded to the original allottee whose successors-in-interest the petitioners herein are. After hearing learned counsel for the parties, we are inclined to grant leave to appeal to consider the question among others whether the petitioners were entitled to be heard by the Settlement Commissioner, whether they were served with a notice of the proceedings before him and if not what is its effect. The parties are directed to maintain status quo." ' Raja Muhammad Anwar, Advocate, prayed (1) that as the parties have been litigating since 1963, the appeal should be heard at an early date and (2) that as all the parties are now before the Court, the question whether the land is urban or agricultural land should be; to save time and expense and to save them of the ordeal of another remand, be finally decided by this Court. 5. It appears that during the hearing of the appeal, appellants i,e, petitioners in Civil Review Petition No,106 of 1998 challenged the legality of transfer of entire chunk of property in favor of Major (R) Barkat Ali in the perspective of status and nature of the property allotted to them and this Court, after full dress hearing spread over four days, and after summoning the record of the property
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including the auction proceedings, held that the land measuring 6 Kanals, 2 Marlas claimed by the appellants was building site. After examination of the record in depth and the transfer documents initially describing the properties auctioned as Properties Nos.1/1 to 1/15 Kharian comprising Khasra No,4551/271 this Court concluded that Khasra No,4550/271, measuring 39 Kanals, 15 Marlas, claimed by Major (R) Barkat Ali as having been auctioned in his favor actually owned by Boota Singh could not be considered to stand included merely because of mention of Khasra No,4550 in the bid sheet at the time of auction or may be the said Khasra number was added after the auction later on. It was held that auction-purchaser in his applications submitted in 1963-64 to the Settlement Authorities had clandestinely including Khasra No,4550 and in view of said unauthorized claim some of the letters issued by the Settlement Authorities also made mention of this Khasra number, which could not be made the basis for claiming transfer of 39 Kanals, 15 Marlas in addition to Khasra No,4551/271. Memo, dated 31-8-1970 addressed by Deputy Settlement Commissioner requiring the auction-purchaser to deposit Rs,12,200, as balance of total transfer price of 72 Kanals, 11 Marlas, was held to be a mala fide act of the said officer. While dismissing the appeal, it was held that approval of the auction proceedings conveyed by the Settlement Commissioner (Policy), Lahore vide memo. Dated 31-7-1964 proved legal justification for transferring Properties Nos.1/1 to 1/15 of Khasra No,4551/271 measuring 32 Kanals, 16 Marlas and was upheld. Consequently, contentions of the appellants to the legality of transfer to the extent of aforesaid property were repelled. 6. While petitioner in Review Petition No,88 of 1998 is aggrieved by the judgment to the extent of excluding Khasra No,4550/271 measuring 39 Kanals, 15 Marlas from his title documents. Review Petitions Nos.106 and 127 of 1998 have been filed to call into question the finding as to the nature of the land allotted to their predecessor-ininterest i,e, Abdul Aziz and Boota before the auction of the property in favor of Chaudhry Barkat Ali. 7. At the conclusion of hearing on 27-5-2004 we had orally announced the dismissal of Civil Review Petition No,88 of 1998 and allowing of Civil Review Petitions Nos.106 and 127 of 1998 but, during the course of dictating the judgment, it was noticed that certain important questions of fact and law required clarification and elaboration, therefore, oral judgment was recalled and review petitions were ordered to be listed for rehearing. These petitions were, therefore, reheard on 13-12-2004 and are being disposed of accordingly. 7-A. Mr. S.M. Masood, learned Advocate Supreme Court raised preliminary objection to the rehearing of these petitions on the premise that, at the conclusion of the hearing, judgment, was orally announced, which is final in terms of Order XX, rule 1, C.P.C. And thus, could not be recalled. Learned counsel referred to a judgment of the Indian Supreme Court Vinod Kumar Singh v. Banaras Hindu University 1989 M LD 3215. We are conscious of the legal position and are firmly of the view that this Court is fully competent to recall an order orally announced and rehear a petition on merits in order to foster the ends of justice rather than to create anomalies. The ratio of the reported case appears to be that the Courts should resort to this practice under exceptional circumstances. There can be no cavil with the proposition of law, the facts remains that it is the prerogative of this Court to obtain clarifications on questions of fact as well as law in order to arrive at a just, fair and right conclusion. Even otherwise neither of the parties is likely to be prejudiced by rehearing of the petitions, as no alteration is proposed in the judgment announced earlier. It may, however, be pertinent to observe that this Court possesses inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Such jurisdiction is vested in this Court under Order XXXIII, rule 6 of the Supreme Court of Pakistan Rules, 1980. Indeed there appears to be no restriction on the power of this Court to rehear and decide a case, subject to the jurisdiction as conferred by the Constitution or by or under any law within the purview of Article 175(2) of the Constitution.
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8. Raja Muhammad Anwar, learned Senior Advocate Supreme Court for the petitioner in Review Petition No,88 of 1998 vehemently, contended that the issue of transfer of Khasra No,4550/271 measuring 39-15 Kanals was neither agitated before the Settlement Authorities nor before the High Court, and as such, this Court transgressed its jurisdiction and travelled beyond the scope of the dispute raised before it, therefore, the judgment suffers from error apparent on the face of record. Learned counsel has taken us through various documents with a view to persuade us to hold that since the petitioner was not heard on this aspect of the case, he could not be deprived of valuable property, lawfully transferred in his favor by the Settlement Authorities, for valuable consideration, notwithstanding the circumstance that by now he has transferred many properties in favor of different persons who have acquired valuable right, interest and title to the property. 9. Conversely, Messrs S.M. Masood and Sheikh Zamir Hussain, learned Advocate Supreme Court strenuously supported the findings recorded in the judgment under review with regard to the transfer of Khasra No,4551/271 in favor of Major (R) Barkat Ali and agitated that the status of agricultural land measuring 2 Kanals, 2 Marlas and 4 Kanals respectively transferred in favor of their predecessors-in-interest in satisfaction of their verified claims in the year 1960 was wrongly found by this Court as building site by misconstruing the documents on record and wrong application of law. 10. As to the submission of Raja Muhammad Anwar, Senior Advocate Supreme Court that the petitioner was not heard on the issue by the Court learned counsel have invited our attention to a part of the leave granted order dated 21-4-1996, which reads as under:-- "(4) Raja Muhammad Anwar, Advocate prayed (1) that as the parties have been litigating since 1963 the appeal should be heard by an early date and (2) that as all the parties are now before the Court, the question whether the land is urban or agricultural land should be, to save time and expense and to save them of the ordeal of another remand, be finally decided by this Court." 11. Raja Muhammad Anwar, learned Senior Advocate Supreme Court for the petitioner-Major (R) Barkat Ali vehemently contended with all emphasis at his command that the question of transfer of land measuring 39 Kanals, 15 Marlas comprising Khasra No,4550/271 was never in issue before the High Court or before this Court at the hearing of the appeal and that petitioner-Major (R) Barkat Ali has been illegally non-suited on the question of transfer of this piece of land and deprived of its benefits without an opportunity of hearing. 12. Conversely, Mr. S.M. Masood, learned Advocate Supreme Court for petitioners Qaim Din and others in Civil Review Petition No,106 of 1998 and Sheikh Zamir Hussain, learned Advocate Supreme Court for the petitioners Muhammad Asghar and others in Civil Review Petition No,127 of 1998 controverted the submission of the learned counsel by stating that the question of transfer of this piece of land was always under controversy and even reviewed by the Settlement Authorities, which was strongly agitated before this Court as well at the hearing of the appeal. 13. Adverting to the principles governing the exercise of the power of review of this Court, it is well- settled that every judgment pronounced by this Court is presumed to be final solemn and well- considered covering all points arising out of the case. If the Court has taken as conscious and deliberate decision on a point of fact or law, a review petition will not be competent. The circumstance that the view canvassed in the review petition is more reasonable than the view already accepted by the Court in the impugned order, of, which review is sought, would not be sufficient to maintain a review petition. Likewise, factum that a material irregularity was committed by the Court would not be adequate enough to warrant a review of the judgment unless the material irregularity be of a nature so as to convert the process of acting in aid of justice to a process of gross injustice. In such eventuality, a review petition would lie competent. Similarly, fact that the conclusion drawn in a judgment is wrong would not warrant review of the same but if the conclusion is wrong because something manifest has been ignored by the Court or the Court has
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not considered an important aspect of the matter, a review petition would lie. Furthermore, principle of law is well-recognized that this Court would not exercise the power of review as a routine matter to rehear a case already decided but the same can be pressed into service where a glaring omission on the face of record or patent error has crept in the judgment by judicial fallibility. 14. We have carefully considered the submission of the learned counsel with the assistance of the relevant record and found that this issue was not only enquired into by the Settlement Authorities but at one stage findings were recorded against petitioner-Major (R) Barkat Ali and he was found to have manipulated the insertion of Khasra No,4550/271 measuring 39 Kanals, 15 Marlas in the transfer documents illegally in connivance with subordinate officials of the Department. This submission was also raised at the hearing of the appeal as reflected in paragraphs Nos.14 and 15 of the judgment under review. Third contention raised by Mr. S.M. Masood recorded in paragraph No,15 of the judgment reads as under:-- "Thirdly, though the plots, which were clubbed together measured 32 Kanals, 16 Marlas comprising Khasra No,4551/271 but unauthorisedly Khasra No,4550/271 was added in the P.T.D. And without any basis or any judicial order the total area shown to be transferred was taken as measuring 72 Kanals, 11 Marlas." 15. Raja Muhammad Anwar, learned Senior Advocate Supreme Court had taken serious exception to this aspect of the argument as reflected in paragraph No,16 of the judgment under review but he did not pursue his argument when his attention was drawn to the leave grant order wherein the said contention had been noted as one amongst others. Learned counsel heavily relied upon Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260 and Jannat Bibi v. Sher Muhammad 1988 SCM R 1696. The ratio of the afore-referred cases appears to be that a party is not permitted to deviate from his or her pleadings nor can a Court set up a different plea for a party and decide the suit on that basis, much less at the appellate stage. There can be no cavil with this legal proposition which is well-settled, the fact remains that in the instant appeal the issue was live before this Court and agitated at length with reference to various orders passed by officers of the Settlement hierarchy under the Settlement and Rehabilitation Laws. Petitioner-Major (R) Barkat Ali was, therefore, neither taken by surprise nor materially prejudiced in defending the cause before this Court. On re-assessment of various orders and documents placed on record, we are of the considered view that finding of fact recorded by this Court does not suffer from misreading of record or any error of law affecting the jurisdiction of this Court. Needless to emphasize, only 15 properties comprising demolished houses/shops/Ahata were clubbed together and put to auction against reserve price of Rs,1,32,900, without clearly mentioning the Khasra number and the area, that is why petitioner-Major (R) Barkat Ali chose to offer the highest bid of Rs,90,000 which was much less than the reserve price. Evidently petitioner-Major (R) Barkat Ali had moved the Settlement Authorities through several miscellaneous applications claiming both the Khasra numbers without any legal justification, which crept into the record by sheer over sight or connivance and found place in subsequent letters as well as P.T.O. After confirmation of the auction proceedings. At subsequent stage, the error appears to have been rectified by not mentioning the particulars of Khasra numbers or the area of the property in the P.T.D. Issued in favor of petitioner-Major (R) Barkat Ali. However, photocopy of the P.T.D. Placed at page 112 of the original paper book bore the additional words "(plot measuring 72 Kanals, 11 Marlas)". 16. Another vital factor, which found favor with this Court while deciding this issue against petitioner-Major(R) Barkat Ali appears to be non-production of the original P.T.D. Before the Bench, when called upon to do so, though the hearing of the appeal continued for four long days. Even judgment was announced after 16 days of conclusion of the arguments. When confronted with this position Raja Muhammad Anwar, learned Senior Advocate Supreme Court attempted to justify the
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attitude of petitioner by saying that Major (R) Barkat Ali was called upon by the Court all of the sudden to produce the original P.T.D. Which he could not do, for want of original document with him We are no persuaded to accept this explanation as sufficient and plausible ground for withholding original P.T.D. From the Court at the hearing of the appeal, which continued for four long days. Finding, so recorded by this Court, therefore, does not suffer…
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