Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: BEGUM SHAMS-UN-NISA VS Respondent: SAID AKBAR ABBASI AND ANOTHER
Court Name: Supreme Court of Pakistan Judge(s): Nasim Hasan Shah, Aslam Riaz Hussain, Shafi-ur-Rehman Title: BEGUM SHAMS-UN-NISA vs SAID AKBAR ABBASI AND ANOTHER Case No.: Civil Appeal No. 60 of 1973 Writ Petition No. 828-R of 1965 Date of Judgment:1982-03-09 Reported As: PLD 1982 Supreme Court 413 Result: Appeal allowed
JUDGMENT
JUDGMENT NASIM HASAN SHAH, J.-This appeal, by leave of this Court, is directed Against the judgment of a learned Single Judge of the Lahore High Court passed on 10-5-1972, whereby he set aside the order of the Chief Settlement commissioner dated 3-6-1965 and restored the order of the Settlement Com--missioner, Rawalpindi, dated 9-6-1964. The relevant facts are that the respondent Said Akbar Abbasi, a non. Claimant displaced person, was found entitled to the transfer of a shop bearing No. M/25-F, Canning Road, Rawalpindi Cantt. Wherein he was running a Barber's shop. The Deputy Settlement Commissioner, on 5-12-1959, issued a demand notice (Appendix `X') to him for payment of Rs. 13,800 being the face of the shop. Since he did not have the requisite funds for paying the transfer price, be entered into an agreement of association with the appellant (a claimant) whereby the latter was to pay the transfer price of the shop from her compensation book and the shop was to be transferred in her favour. Both the parties engaged Mr. M. S. Mahboob, Advocate, to draw up the Association Deed and both signed the power of attorney in his favour. Mr. Mehboob drew up the Agreement of Association on 23-3-1960 and got it executed by both the portions. It was then got attested by an Oath Commis--sioner. The respondent signed the application addressed to the Deputy Settlement Commissioner requesting him for acceptance of the agreement of association. All these documents were filed before the Deputy Settlement Commissioner, who called for a report from the Settlement Inspector. The latter reported that the respondent was willing to surrender the shop in favour of the appellant as per the Agreement. According to the terms of the Association Deed the respondent surrendered all his rights and interests in the shop in favour of the appellant who was to pay the transfer price from her verified claim: The Deputy Settlement Commissioner then
---
## Page 2
accepted the Agreement of Association on 1-4-1960. (The copy of the Deed of Associa--tion is at page 71 of the paper book). The Deputy Settlement Commissioner, thereafter, on 18-7-1961, issued a Provisional Transfer Order in favour of the appellant and as the price of th--e shop was duly paid by the appellant (from her compensation book) the P. T. D. Was also issued on 10-2-1962. The respondent, thereafter, started paying the rent of the shop to the appellant. On 21-10-1963, the respondent filed an application for fixation of fair rent before the Rent Controller, Rawalpindi Cantonment Area, under section 7 of the Cantonment Rent Restriction Act, 1963. In this application he acknow--ledged that he was a tenant under the appellant, who was charging from him Rs. 80 per month as rent of the shop, as this was excessive rent, as compared to its assessed rent by the Cantonment Board, Rawalpindi and also in com--parison to the rent prevailing during 15 months immediately preceding Ist July, 1961. It was prayed that a fair rent of the shop may be fixed. This application shows that the respondent was fully aware of the factum of the transfer of the property in favour of the appellant and that he had become her tenant and duly recognised her aforesaid status. However, sometimes thereafter, the respondent changed his attitude and on 9-4-1964 he applied to Sardar Zaman Khan, Director Military Lands and Cantonments & Ex-Officio Settlement Commissioner, Rawalpindi for cancella--tion- of the agreement of association dated 22-3-1960 and for transfer of the shop to him. In this application he submitted that the appellant had got a blank stamp paper signed by him on the understanding that she would get the draft typed thereon to the effect that her compensation book would be utilized for payment of the evaluation price of the shop but that it was never agreed to that the respondent herein would relinquish his proprietary rights in the shop in favour of the appellant herein. It was further submitted that the appellant fraudulently got a draft typed on the stamp paper, whereby the respondent was made to transfer his proprietary rights in the shop in favour of the appellant. Furthermore, the agreement was without consideration. The learned Settlement Commissioner, by his order dated 9-6-1964, accepted the said application observing that the agreement of association was without consideration and appeared to have been forged ; the Deputy Settle--ment Commissioner did not record the statement of the respondent that he was surrendering his valuable rights without any consideration in favour of the appellant at the time of the submission of the Agreement Deed. The-- Deed of Association was, accordingly, cancelled. The P. T. O., and P. T. D., issued on its basis, were also cancelled. It was further directed that the price recovered from the Compensation Book of the appellant be restored to her. Aggrieved by the said order, the appellant applied on 31-7-1964 to the Chief Settlement Commissioner requesting him that he may in exercise of the powers of Superintendence and Control vested in him under section 9(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, after satisfying himself that the order of the Settlement Commissioner was without jurisdiction, hence a nullity, direct the Deputy Settlement Commissioner to ignore it and to refrain from implementing it. A show-cause notice dated 17-3-1965 was issued to the respondent to show cause as to why the order of the Settlement Commissioner dated 9-6-1964 should not be ignored on the grounds that- (i) the order did not disclose under what provision of the law, the Settle--ment Commissioner had assumed jurisdiction ; (ii) the Settlement Commissioner was not authorised to exercise powers under Rule 7 ; and (iii) the findings of the Settlement Commissioner that a fraud bad been committed appeared to be wrong. In any case he had no powers to cancel the Deed of Association when the application
---
## Page 3
presented to him was made under no specific provision of the law, implying thereby that he had no power to cancel an Agreement of Association executed by two private parties. the Chief Settlement Commissioner, after hearing the parties, by his order dated 3-6-1965, declared the order of the Settlement Commissioner a nullity and under powers of the General Superintendence & Control vested in him under reaction 9(3), he directed the subordinate Settlement Authorities. To ignore it. The reasons for reaching this conclusion are contained in paras. 9 to 11 of his order, which may usefully be reproduced below :- "According to the standing instructions on the subject, an agreement of association once filed by the persons concerned should be treated as final and they should not be allowed to withdraw or modify it subsequently. The fact whether the parties to the agreement have or have not received any consideration in lieu of their surrendered rights in favour of one or the other is not the function of the Settlement Authorities. If any of the parties alleges that they have been defrauded or the agreement has been obtained by undue influence or duress, they will have to go to normal Court of law and get their relief there. The order of the Settlement Commissioner in cancelling the agreement deed is in excess of jurisdiction and I, accordingly, hold it as such. In view of the fact that the orders of the Deputy Settlement Commissioner accepting the deed of association and its subsequent transfer in favour of Mst. Shams-un-Nisa Begum were not challenged by the respondent within the stipulated period of limitation these orders had attained finality under section 22 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. The Settlement Commissioner was not competent to quash such a final order. After the issue of P. T. D. Action could only be taken for the resumption of property under Rule 7 of the Permanent Transfer Rules, 1961, by a Settlement Authority not below the rank of an Additional Settlement Commissioner authorised by the Chief Settlement Commissioner in this behalf provided the transferee had obtained the transfer of the property by fraud and misrepresentation or in contravention of any provisions of the Displaced Persons (compensation and Rehabilitation) Act, 1958. The Settlement Commissioner has not ordered "resump--tion" but has ordered cancellation "of the P. T. D. Thereby implying that the shop be transferred to the respondent. This cancellation in my view is without legal authority and I, accordingly, declare it to be of no legal effect. Moreover, the Settlement Commissioner, Rawalpindi Cantt. Was never authorised by the Chief Settlement Commissioner to exercise power under Rule 7, referred to above. The impugned order, for this reason, also is incompetent, void and inoperative and I hold it as such." The above order of the Chief Settlement Commissioner was challenged by the respondent by filing a writ petition in the Lahore High Court (W. P. No. 828-RI65) and a learned Single Judge of the said Court was pleased to accept it by his order dated 1C-5-1972 and quash the order of the Chief Settlement Commissioner dated 3-6-1965 holding it to be beyond his jurisdiction. Before the learned Judge in the High Court several contentions were raised but the learned Judge concerned himself with the sole question whether the order of the Chief Settlement Commissioner impugned before him could be passed in exercise of the powers vested in him under section 9(3) of the Act. This provision is in the following terms :- "Subject to the provisions of this Act and of such orders as may from time to time be made by the Central Government in this behalf, Settlement Commissioner, Additional Settlement Commissioner, Deputy Settle--ment Commissioner and Assistant Settlement Commissioner and any other Officer shall perform the duties and discharge the functions assigned to them by or under this Act under the General Superinten--dence and Control of the Chief Settlement Commissioner, the Central Government may appoint any officer to discharge such functions and perform such duties of the Chief Settlement Commissioner as may from time to time be specified by the Central Government."
---
## Page 4
The learned Judge held that this provision related to the administrative matters only and the circumstance that the Chief Settlement Commissioner could exercise the powers of general superintendence and control over the officers subordinate to him did not mean that in the exercise of the said powers he could upset any judicial order passed by the competent authority or could interfere in the performance of judicial functions of his subordinates. As the order passed by the Settlement Commissioner impugned before him was a judicial decision it could not be interfered with by the Chief Settlement Commissioner in exercise of his powers under section 9 (3) of the Act. Aggrieved by the above judgment of the High Court, the appellant moved this Court by a petition for leave to appeal (C. P. S. L. A. No. 344/72) and leave was granted to him by this Court on 19-4- 1973. The relevant part of the order granting leave is as follows :- "Major Ishaq Muhammad Khan, learned counsel for the petitioner has contended that the Chief Settlement Commissioner, has exercised the power of control over the Settlement Commissioner, and that he has only held that the order of the Settlement Commissioner should be ignored, as be was not empowered to set aside Permanent Transfer Deed. He has further contended that the Settlement Commissioner had no jurisdiction to entertain and adjudicate upon the respondent's application dated the 9th April, 1964, alleging fraud and requesting cancellation of the Deed dated the 22nd March, 1960, as the Settlement Commissioner had become functus officio after issue of Permanent Transfer Deed in 1962, and the Settlement Commissioner concerned had not been authorised by the Chief Settlement Commissioner to exercise powers under Rule 7. The contention of the learned counsel requires consideration. We would, therefore, grant leave." However, in the course of the hearing of the appeal, we have heard that learned counsel for the parties not only on the above questions, but on all the issues arising in the case, with a view to doing complete justice in the case. In so doing we were guided by the precedents of this Court, wherein it wall held that if the circumstances of the case require, the entire case may bet re-opend to prevent failure of justice even though leave was granted to examine only certain specified points. See Mst. Bibi Jan v. Habib Khan and another (PLD 1975 SC 295and Shah Nawaz and another v. Nawaz Khan (PLD 1976 SC 767 Major Ishaq Muhammad Khan, learned counsel for the appellant, has submitted before us that he does not contest the proposition that a judicial order passed by a Settlement Authority cannot be interfered with by the Chief Settlement Commissioner in exercise of the powers of Superintendence and Control. According to him that was not, however, the real issue in this case. The real issue was whether a direction could be issued by the Chief Settlement Commissioner to his subordinates that an order or judgment of the Settlement Commissioner, which was without jurisdiction hence a nullity. Be ignored and not implemented in the exercise of his executive/administrative powers of the Superintendence and Control. In this connection, strong reliance was placed on the judgment of this Court in the case of Khuda Bakhsh v. Khushi Muhammad and others (PLD 1976 SC 208and the following passage was relied upon .- "The order of the Chief Settlement Commissioner dated the 7th of November 1966, had merely pointed out the want of jurisdiction in the order dated the 9th of May, 1962. The order dated the 9th of May 1962 was void ab initio on account of want of jurisdiction in the Chief Settlement Commissioner to pass the order, and it was, therefore, a nullity and could be ignored." The contention, therefore, is that the order of Mr. Shah Zaman Khan being a nullity was not a judicial order and, therefore, the Chief Settlement Commis--sioner could direct that it may be ignored. The main ground in which it is asserted that the order of the Settlement Commissioner was a nullity is that after the issuance of the P. T. D. The property had gone out of the compensa--tion pool and the settlement authorities bad become functus officio and, therefore, the Settlement Commissioner had no jurisdiction to deal with the matter in the exercise of his revisional powers. In this connection, attention is invited to this Court's decisions reported in S. Anwar Hussain Sani etc. v.
---
## Page 5
Sarfraz Ahmad and others (PLD 1971 SC 6 69), Aminuddin v. Settlement Commissioner and others (1973 SCMR 624), Syed Murid Hussain Shah v. Mufti Muhammad Yousuf Ali and others (1974 SCMR 8and Usi. Hajra Bi and another v. Settlement and Rehabilitation Com--missioner, Karachi and another (1974 SCMR 235It is further submitted that the learned Settlement Commissioner, in fact, was not conscious that he was exercising powers under section 20(3) of the Act but was under the impression that he was exercising the powers under the Instructions relating to "withdrawal of agremznt of association" appearing at page 122 of the Settlement Manual (Old). It was also submitted that the respondent was estopped from challenging the validity of the Agreement of Association and the order of transfer passed on its basis because he had appointed Mr. Mahboob, Advocate, to be his agent to get the property transferred in favour of the appellant; that after the transfer of the property in his favour he started paying rent to her and himself acknowledged before the Rent Controller that he was her tenant but was being charged excessive rent and, therefore, fair rent should be fixed. In fact, after the lapse of 3 to 4 years of the order of transfer in favour of the appellant, the respondent had no locus stand! To challenge in 1964 the transfer made in her favour. It is further submitted that the High Court should not, in exercise of its writ jurisdiction, act in aid of injustice. He submits that the respondent started agitating against the appellant soon after the death of her husband taking advantage of the helplessness of a refugee widow. He started making false and reckless allegations of forgery and fraud and brought them before a person who had no jurisdiction to entertain and adjudicate upon them. The learned Judge in the High Court, however, had confined himself to the technical aspect of the case, namely, whether the Chief Settlement Commis--sioner had the power to interfere with an order of the Settlement Commis--sioner. He had omitted to proceed further and to examine whether the said order was proper and valid before he restored it. The cardinal principle that writ jurisdiction was not to be exercised in aid of injustice had been con--travened to the "prejudice and dismay" of the appellant. Sardar Muhammad lqbal, learned counsel for the respondent in his elaborate and comprehensive address, in which he cited all the relevant case-law, has in reply contended that the order of the Chief Settlement Commissioner under section 9(3) of the Act was without lawful authority and, therefore, the judgment of the High Court declaring it as such was unexcep--tionable. He further submitted that it was not competent for the appellant to challenge the order of the Settlement Commissioner before this Court when she failed to file a writ petition in the High Court to assail it or to impugne its validity before the High Court. At any rate, the High Court was not under any obligation to adjudicate on the said question in the absence of any writ petition. Moreover, it was submitted, that the order of the Settlement Commissioner was passed with lawful authority for the reason that it was passed in exercise of the revisional jurisdiction and the mere issuance of the P. T. D. Did not take away the appellate and the revisional jurisdiction of the Settle--ment authorities. In support of the contention that the P. T. O. And the P. T. D. Does not take away the appellate and the revisional jurisdiction of the settlement authorities reliance is placed on Syed Ahmad Abbas Zaidi and others v. Settlement Commissioner, Rawalpindi and another (1), Muhammad Ismail and another v. Settlement Commissioner and another (2), Muhammad Anwar Khan etc. v. M. A. Wasti, Settlement & Rehabilitation Commissioner, Peshawar and others (3), Muhammad Yaqub v. Settlement Commissioner Lahore Division and others (4), Sh. Abdul Latif v. Deputy Settlement Commis--sioner and others (5), Muhammad Shafi v. Settlement Commissioner, Multan and another (6), Rahim Bakhsh v. Dost Muhammad and another (7) and Abdul Hamid v. Gulab Khan and others (8). In support of the correctness of the order of the Settlement Commissioner it is submitted that it is not disputed that the statement of the respondent was not recorded before the alleged agreement of association was accepted. This being so there was no agreement in the eye of law before the
---
## Page 6
Settlement authorities. In this connection, attention was drawn to Mst. Fatima Bibi and others v. Settle--ment Commissioner, Lahore and others (9), Haji Abdul Aziz v. Khalil Ahmad and others (10) and Mst. Amina Begum v. Additional Settlement Commissioner, Lahore and others (11). It is further argued in this connection, that the Settle--ment Commissioner had recorded a finding that the agreement was without consideration. The appellant did not controvert the same either before the Settlement authorities or before the High Court and even in the petition for special leave to appeal before this Court. The agreement was void ab initio. Attention is invited to section 25 of the Contract Act. It is also pointed out that the appellant did not raise any objection before the Settlement Commissioner that he had no jurisdiction to hear the petition by him. In fact, he actually participated in its hearing on merits. The con--tention raised by her that the Settlement Commissioner had no jurisdiction, even if it had been correct, could not be given effect to because she stood by and allowed the Tribunal to exercise the jurisdiction. It is finally contended that the Chief Settlement Commissioner had no jurisdiction under section 9(3) of Act XXVIII of 1958 to interfere with the order of the Settlement Commissioner. The appellant should have, if she was aggrieved, challenged the order by filing a writ petition in the High Court. (1) PLD 1968 Lah. 166(2) 1973 SCMR 407 (3) 1975 SCMR 372(4) PLD 1975 Lah. 1553 (5) 1976 SCMR 503 . ,(6) PLD 1979 Lah. 790 (7) 1982 SCMR 665'(8) .1981 SCMR 188 (9) PLD 1973 Note 23 at p. 34(10) PLD 1973 Note 47 at p. 63 (11) 1981,SCM R 228 Such a writ petition, if filed, would have merited dismissal on more than one ground. Major Muhammad Ishaq, in reply, submitted that a close reading of the instructions relating to agreement of association indicated that it was not necessary to hear the parties before giving effect to them. The instructions showed that the agreement of association was to be recorded on a four-rupee non judicial stamp paper, duly attested by a First Class Magistrate or an Oath Commissioner and was to be filed by the parties with the Settlement Authority concerned indicating that they desired to take the property jointly, in shares to be specified by them, or that one of the parties agreed to surrender the property transferable to him in favour of the other party. He relied for these submissions on the provisions of para. 6 of the Press Note dated 13th February, 1960, which was issued by the Chief Settlement Commissioner with the approval of the Central Government and, therefore, had the force of a Scheme. The contention was that if these conditions were satisfied, the Settlement Authority concerned was merely to give effect to the agreement and did not, in reality, accept it, as the said concept is normally understood. If a fraud was committed on one party, the remedy for that party was to approach the Civil Court. In connection with his submission that it was not necessary for the settlement authorities to hear the parties before giving effect to a Deed of Association, he referred to the well-known practice of obtaining transfer of properties, by what was commonly described as purchase of claims, and pointed out that if the requirement of hearing all the parties to such transac--tions was insisted upon it would have been impossible to complete the settlement operations within a reasonable time and, therefore, it was deliberately decided not to provide for hearing in such matters. To prevent any abuse the precaution taken was that besides the condition that the agreement must be drawn up on rupees four non judicial stamp paper it must be attested by a First Class Magistrate or an Oath Commissioner and this Authority it was assumed would, before attesting the agreement, satisfy itself with regard to the correct identification of the parties and the fact that it was being entered into voluntarily. If some fraud was still perpetrated, the party defrauded could approach the Civil Court.
---
## Page 7
He further pointed out that in this case the respondent was fully aware of the transfer in favour of the appellant and bad accepted her as his land--lady and there was no question of any fraud having been perpetrated by the respondent in securing the transfer in her favour. As for the question that no consideration had been paid to the respondent, the learned counsel submitted that the provisions of the Displaced Persons (Compensation and Rehabilitation) Act and the Scheme framed thereunder were not subject to the provisions of the Contract Act. In so far as the pro--visions of the Displaced Persons (Compensation and Rehabilitation) Act and the Scheme framed thereunder were concerned, they were designed to ensure that the. Property in the compensation pool was transferred on payment of the transfer price so that the compensation pool did not suffer on account of non-payment of transfer price. It was not concerned with the aspect that the party held eligible to the transfer was getting some consideration before agreeing to surrender its rights in favour of a claimant, who was taking the responsibility of paying the transfer price from his compensation book. Consequently, it was not necessary for the settlement authority to see if there was mention of any consideration in the Agreement of Association. In this connection, Major Ishaq Muhammad Khan took pains to draw our attention to…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.