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Petitioner: Syed YOUSAF MAHMUD AND OTHERS VS Respondent: ABDUL HADI KHAN THROUGH DR. M. A. JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Afzal Lone Title:Syed YOUSAF MAHMUD AND OTHERS vs ABDUL HADI KHAN THROUGH DR. M. A.
JUDGMENT
Reported As: 1983 CLC 3319 Result: Petition accepted Judgment JUDGMENT ' This judgment shall dispose of Writ Petitions Nos. 605/R/1971, 664/R/1977 and 1836/R/1974, as these relate to the same property and common questions of law and facts are involved therein. 2. The dispute relates to Property No, S. 69-R-23, Warris Road, Lahore which was in occupation of and applied for under separate C. H. Forms, by four persons, namely, Mst. Walayat Begum, Mst. Ghulam Sakina, Siraj-ul-Haq and Mst. Nisar Fatima. After submission of his form C. H. Mst. Walayat Begum died on 12th May, 1960. The Deputy Settlement Commissioner by his order, dated 11th October, 1960 divided the property into four portions. He earmarked Portion No, 1 for the heirs of Mst. Walayat Begum and observed that it would be open to them to claim substitution and transfer of the property. Portions Nos. 2 and 3 were transferred to Siraj-ul-Haq, whereas Mst. Ghulam Sakina was held eligible for transfer of Portion No, 4. Mst. Nisar Fatima was thus excluded. Her appeal was dismissed by the Additional Settlement Commissioner, on 27th July, 1963 and the revision also met the same fate. She is no longer in the field now. 3. Before proceeding further, it may be mentioned here that the transferees are inter se closely related. Mst: Ghulam Sakina is the sister of Mst. Walayat Begum and mother of Siraj-ul-Haq. On 18th October, 1960, the heirs of Mst. Walayat Begum moved the Deputy Settlement Commissioner, to be brought on the record. Accordingly, the Deputy Settlement Commissioner by his order, dated 20th October, 1960 accepted them as successors-in-interest of the deceased. The P. T. O. Was issued to them on 20th February, 1952. The other two transferees, namely, Siraj-ul-Haq and Mst. Ghulam Sakina were issued the P. T. Os. On 13th October, 1960. The record shows that though the Deputy
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Settlement Commissioner on 20th October, 1964 approved the Settlement Inspector's report, apportioning the assessed rent of the property, between the transferees as under :- (i) Heirs of Mst. Walayat Begum ... Rs, 65 (ii) Siraj-ul-Haq ... Rs, 115 (iii) Mst. Ghulam Sakina ... Rs, 65 yet the notices of transfer in the Form Appendix X as required by para. 29 of Settlement Scheme No, 1 were not issued to them. On the basis of this apportionment of rent the transfer price to be paid by the three transferees came to Rs, 31,200, Rs, 55,200 and Rs, 31,200 respectively. 4. As the delay in the issue of Compensation Book by the Settlement Department to Siraj-ul-Haq is one of the major issues between the parties, it will be appropriate to refer here briefly to the facts with regard thereto. For the issue of Compensation Books to them, the three claimants submitted separate Form 'A' to the department. The form filed by Walayat Begum bore No, LHR-1-621, whereas the Forms of Mst. Ghulam Sakina and Siraj-ul-Haq were registered under Nos. LHR-1-622 and LHR-1- 623, respectively. It transpires from the report submitted by the department to this Court, in pursuance to the order, dated 23rd December, 1974 passed in Writ Petition No, 1836/R/74, that somehow or other Compensation Book was issued to Walayat Begum against Form 'A' No, 623, which pertained to Siraj-ul-Haq instead of Form No, 621 filed by her. Siraj-ul-Haq made various representations to the department for issue of Compensation Book but he could not succeed during his lifetime. Reference may be made to his letter, dated 14th March, 1964 addressed to the Deputy Settlement Commissioner, which made mention of his three previous applications, dated 21st November, 1962, 21st May, 1963 and 6th March, 1964. It appears that in this respect he also lodged a complaint with the President Secretariat (Annexure 'IT); on which some correspondence was exchanged between the Additional Settlement Commissioner and the Deputy Settlement Commissioner (Annexure '0'). It was after the death of Siraj-ul-Haq, that on 6th August, 1973 in response to a requisition made by the department, his heirs filed a copy of Form 'A' duly signed by them along with an Indemnity Bond; that Compensation Book was delivered to them on 27th March, 1974. As to the cause of this delay, the parties are at variance. A finding on this point shall be returned in the succeeding paragraph of this judgment. 5. It appears that none of the transferees paid the transfer price. To the department. They were, therefore, served with demand notices. As these notices have been made the foundation of further action against them by the Settlement Authorities, it will be appropriate to precisely make here mention thereof. The first notice, dated 19th October, 1962 issued to Siraj-ul-Haq is under para. 35 of the Settlement Scheme No, 1 requiring him to pay the transfer price of Rs, 55,200 within 30 days of receipt of that notice. It was followed by notice, dated 19th February, 1964 under para. 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, and Para. 35 of Scheme No, 1. It was in reply to this notice that Siraj-ul-Haq (deceased) wrote to the Deputy Settlement Commissioner his letter, dated 14th March, 1964 (Annexure `L') referred to hereinbefore, wherein he expressed his grouse, that despite repeated requests Compensation Book was not issued to him and in its absence he could not be sure of the exact amount due from him, after adjustment of the deferred payment available therein, against the transfer price. The third notice is, dated 2nd September, 1966, which was issued under para. 24 of the Schedule and para. 11 Chapter (3) of Settlement Scheme No VIII. By this notice, too, Siraj-ul-Haq was required to pay the outstanding transfer price within 30 days. The last undated notice under the same provisions of law, was served on the wife of Siraj-ul-Haq on 16th October, 1967. In pursuance of this notice the Deputy, Settlement Commissioner, on account of default in the transfer price, by his order, dated 10th October, 1967 cancelled the transfer of the property to Siraj-ulHaq and resumed the same. 6. So far as heirs of Mst. Walayat Begum are concerned, before disposal of the property through auction in favour of Abdul Hadi Khan, who died during pendency of these writ petitions, and is now
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represented by his legal heirs, neither any demand notice was served on them nor is there any file, in respect of the portions of the bungalow transferred to them. The respondents have placed on the record two demand notices issued to Mst. Ghulam Sakina. The first one was issued in the year '1960 under para. 35 of Settlement Scheme No, 1 whereas the second notice under para. 24 of the Schedule and para. 35 of the Scheme is dated 9th March, 1964. By means of both these notices she was required to pay the transfer price of Rs, 31,200 within 30 days of receipt thereof. The service of the notices is, however, denied by her legal heirs who 'have been impleaded as party on their application, during pendency of the writ petition. No resumption order was passed by the Deputy Settlement Commissioner in respect of portion transferred to Mst. Ghulam Sakina. 7. Siraj-ul-Haq filed an appeal against the resumption, order, dated 20th October, 1967. During the pendency of his appeal, the -property was included in the auction list and described therein as under :- Property No, Location Name of NaMe of Reserve Remarks Evacuee occupant/ Price owner transferee S. 69-R-23 Warris Lakhshmi Siraj-ul-Haq Rs, 45,600 Full Road Devi. ' Whether the entire property was put to auction or only the portion resumed from the name of Siraj-u-Haq is another controversial issue, requiring determination. On publication of the auction list, Siraj ul-Haq moved an application, dated 24th February, 1968 before the Settlement Commissioner-(Admn. And Policy) praying that the property be not put to auction and a grace period be allowed to enable him to sort out the , case, as the matter regarding issue of Compensation BOOK was in confusion. In this application throughout the pronoun "We" was used, though it was signed only by Siraj-ul-Haq. The case of the respondents is that he was attorney for the other two transferees, and this application was submitted by him in his personal capacity as well as attorney for his mother and aunt ; the order passed thereon by the Settlement Commissioner 24th_ February, 1968 is binding on all of them. This order is reproduced-below-:- "The property cannot (repeat not) be deleted from the auction list. The auction may, however, not be confirmed for 15 (fifteen) days. If the applicant makes full payment during this period the house may be allowed to stand in his name, otherwise it may be transferred to the highest bidder. (Sd.) Bashir Ahmad S. C. Lahore" ' The implication of this order and whether this is binding on the heirs of the two ladies, is another disputed issue. 8. The property was auctioned on 28th February, 1968 for Rs, 1,41,000 in the name of Abdul Hadi Khan. As no payment was made in pursuance of the Settlement Commissioner's order, dated 24th February 1968, the auction was confirmed by the Additional Settlement Commissioner by his order, dated 18th March, 1970. The auction-purchaser deposited the sale price and notwithstanding the pendency of the litigation, the P. T. D. Was issued to him on 30th June, 1970. 9. The appeal filed by Siraj-ul-Haq was dismissed in default by the learned Additional Settlement Commissioner, on 6th March, 1968. He then preferred a revision petition which was dismissed by the Settlement Commissioner by his order, dated 16th October, 1968. He absolved the department from the delay in the issue of Compensation Book to Siraj-ul-Haq and in fact he attributed it to the conduct of the latter. The issue of Compensation Book to Mst. Walayat against Form 'A' No, 623 was termed by him as ingenious device to create confusion, to enable Siraj-ul-Haq to blame the Settlement department, and at the same time to avoid payment of transfer price. He upheld the resumption order, dated 20th October, 1976 which was issued before the expiry of the period allowed by the demand notice served on the wife of Siraj-ul-Haq on 16th October, 1979. In his opinion, Siraj-ul-Haq was a defaulter, who merely wanted to retain the property by prolonging litigation. He referred to the order dated 24th February, 1968 passed by the Settlement Commissioner (Policy) and observed that this having not been challenged attained finality. It is to
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be noticed that this revision was heard alongwith the one filed by Mst. Nisar Fatima, which was also dismissed by the same order. Siraj-ul-Haq expired on 7th October, 1968 and his heirs, challenged the dismissal of the revision through Writ Petition No, 265/R/1969 in which on 20th February, 1969 status quo was ordered to be maintained subject to the writ, petitioners' depositing of Rs, 31,000 with the Deputy Registrar of the High Court, within one month. This order was not complied with, and the writ petition was dismissed on 9th June, 1969, when the petitioners' counsel submitted to the Court that he had no instructions. In the meantime the heirs of Siraj-ul-Haq were ejected by the Settlement department from the house in question and the auction-purchaser inducted therein. They filed Writ Petition No, 16/R/1972 against their ejectment, which was accepted on 27th September, 1972. The matter is now stated to be subjudice before the Supreme Court. 10. Claiming that by issuance of Compensation Book, a fresh cause of action has arisen to them, the heirs of Siraj-ul-Haq have filed Writ Petition No, 1836/R/1974 calling in question the validity of the Settlement Commissioner's order dated 16th October, 1968, the orders passed by the Deputy Settlement Commissioner and so also the disposal of the property in favour of Abdul Hadi Khan. 11. As regards the case of Mst. Ghulam Sakina and the heirs of Mst. Walayat Begum after the confirmation of auction, in favour of Abdul Hadi Khan, both the transferees were issued separate demand notices Nos. 3/387 and 3/388, dated 13th January, 1970, requiring them to pay the transfer price of Rs, 31,200 in each case within 30 days of receipt of the notices. Mst. Ghulam Sakina complied with the notice issued to her and paid the transfer price and other Government dues. On 9th June, 1970 the Settlement Commissioner (Urban) addressed a letter to the Deputy Settlement Commissioner requiring him to explain as to why these notices were issued, when the entire property had already been sold to Abdul Hadi Khan. A hint was also thrown that a P. T. D. Be issued to the auction-purchaser. The'Deputy Settlement Commissioner thereupon by his order, dated 29th June, 1970 maintained that Siraj-ul-Haq acted as attorney for his mother and his aunt and mother- in-law Mst.. Walayat Begum in the proceedings before the Settlement Commissioner (Policy) which culminated in order, dated 24th February, 1968, as a result whereof the entire property was resumed and auctioned. He held that the demand notices, dated 13th January, 1970 were issued by mistake and accordingly cancelled the same. 12. Mst. Ghulam Sakina as well as the heirs of Mst. Walayat Begum filed two separate appeals against the Deputy Settlement Commissioner's order, dated 27th June, 1970, in which they took the stand that only the portion of the property transferred to Siraj-ul-Haq was resumed and put to auction, and that no resumption order was passed in respect of the property transferred to them. That they were neither served nor heard before passing of the impugned order by the Deputy Settlement Commissioner. This appeal was accepted by the Additional Settlement Commissioner on 18th January, 1971, who remanded the case to the Deputy Settlement Commissioner for a fresh decision. 13. The auction-purchaser preferred revision petitions from this order both against the heirs of Mst. Ghulam Sakina and the heirs of Mst. Walayat Begum, which fell for hearing before the same learned Settlement Commissioner (Respondent No, 2) who passed the order, dated 16th October, 1968 rejecting the revision petition of Siraj-ul-Haq and had also issued letter, dated 9th June, 1970 to the Deputy Settlement Commissioner referred to in para. No, 11 of the judgment. Both the revision petitions were taken up for hearing together by the learned Settlement Commissioner. While the case was pending before him, petitioner No, 1 (in W. P. No, 605/R/71) who was one of the respondents in the revision petition, filed against the heirs of Mst. Walayat Begum, on 29th March, 1971, moved an application before the learned Chief Settlement Commissioner, for transfer of the case. The reasons assigned in the application, were that respondent No, 2 profusely insulted the applidant's .Wife in the open Court; that even on medical ground he did not grant a longer adjournment and postponed the hearing only for four days. Letter, dated 9th June, 1970 sent by
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respondent. No, 2 to the Deputy Settlement Commissioner was also taken up as a ground for transfer of the case. On 14th May, 1971 which was the date of hearing, respondent. No, 2 adjourned the case to 31st May, 1971, as the order of the Chief Settlement Commissioner on the transfer application was still awaited. It appears that this adjournment was granted in the absence of the auction-purchaser, who on the same date brought it to the notice of respondent No, 2 that the transfer application had already been turned down by the Chief Settlement Commissioner, who also ordered early disposal of the case. Respondent No, 2 accordingly changed the date of hearing from 31st May, 1971 to 19th May, 1971. On the notice sent to the petitioners (in W. P. No, 605/R/71) of intimation of date of hearing, the process server reported : - {{URDU TEXT}} "Sd/- 17th May, 1971. On the strength of this report, ex parte proceedings were conducted against the petitioner, Arguments were heard and both the revisions were accepted by the learned Settlement Commissioner by his order, dated 22nd May, 1971. This order as well as the Additional Settlement Commissioner's Order, dated 18th January, 1971 and the Deputy Settlement Commissioner's Order, dated 17th June, 1970, have been impugned by the heirs of Mst. Walayat Beguni through Writ Petition No, 605/R/1971, and by Mst. Ghulam Sakina, now represented by her legal representatives, through Writ Petition No, 664/R/ 1971. For the.Sake of facility both the Writ Petitions are taken up first. W. P. No, 605/R11971 and W. P. No, 664/R/1971. 14. The first submission of the learned counsel for the petitioners in both the cases was that the property transferred to Mst. Walayat Begum and Mst. Ghulam Sakina was not resumed and transfer' made in their favour cancelled. It was urged that the petitioners' property was not included in the auction list and was thus never put to auction ; the transfer documents issued to the auction purchasers for the whole of the Property No, S. 69-R-23 including the portion transferred to the petitioners were without lawful authority and did not confer any right on the transferee in relation to the petitioners' property. 15. It is not disputed by any of the parties that there is no specific order on the file regarding cancellation of the transfer of the property to the petitioners and resumption thereof. The case of the respondents, however, is that the petitioners or for that matter their predecessor-in-interest, and Siraj-ul-Haq are the members of the same family and they took unanimous decisions ; Siraj- ul-Haq was the attorney for both the ladies and in that capacity he moved the application, dated 24th February, 1968, before the Settlement Commissioner (Admn. And Policy) for exclusion of the property from the auction list, which was disposed of by him by an order of the even date 'whereby it was, directed that the auction would not be confirmed for 15 days and if full payment was made during the period the house would be allowed to stand in the name of the applicant, otherwise its transfer to the highest bidder would hold good. The submission was that the petitioners' predecessor-in-interest could not have been unaware of this order, which was neither complied with nor challenged before the proper forum; the entire property, therefore, stood resumed. Reliance was placed on the statement of Siraj-ul-Haq, dated 10th October, 1960 in which he assented that he was attorney for the two ladies. A copy of the deed of Power-of-Attorney, from the settlement file, whereby the two ladies had appointed Siraj-ul-Haq as their attorney, was also mentioned to establish that the petitioners' predecessors-in-interest were bound by the omissions and commissions of Siraj-ul-Haq (decesaed). It was further argued that after publication of the auction list, the ejections could be filed before the Deputy Settlement Commissioner against the inclusion in the auction list of the property transferred to the petitioners' predecessors-ininterest. As no objections were preferred, the petitioners were precluded from asserting that their property was not included in the auction list. It may be observed that Mst. Amina, petitioner No, 5 in Writ Petition No, 605/R/71 is the widow of Siraj-ul-Haq, who alongwith other heirs of the deceased, had filed Writ
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Petition No, 165/R/69 in which it was averred that the entire bungalow was included in the auction list. This averment, was sought to be used as an admission, by the respondents' learned counsel, against all the heirs of Mst. Walayat Begum. 16. The power to cancel and resume the property for default in payment of transfer price is to be found in para. 3 of the Settlement Scheme No, VIII, as it existed before its reconstitution in the year 1973 which empowers the Deputy Settlement Commissioner to cancel the transfer and resume the property, in case, the demand notice issued to the transferee by registered post acknowledgement due goes unheeded. Both under para. 24 of the Schedule and para. 4 of Scheme VIII, it is only after cancellation of the transfer that a property becomes available for disposal, in pursuance of pares. 5, 6 and 7 of the Scheme. The cancellation and resumption of the property is thus a condition precedent for making the property 'available' for disposal. I feel that these provisions are imperative and because of noncompliance thereof, legally, the petitioners' property did not become "available" and, therefore, it could not be auctioned. It is well established that when the enactment provides that a thing should be done in a particular manner it has to be done in the same way or not at all. Reference may be, made in this connection to Ghulam Abbas v. The Additional Commissioner and Election Tribunal, West Pakistan Province v. Jamshed Miran, Mian Abdul Majid and others v. Chief Administrator of Auqaf and Muhammad Yousaf Khan Khattak v. S.M. Ayub and others. ' Even otherwise the premises relied upon by the respondents do not justify an inference that the petitioners' property was lawfully disposed of in favour of the auction-purchaser. 17. The main argument of the learned counsel for the respondents was that Siraj-ul-Haq was the attorney for the two ladies. To weigh their submission, I have carefully gone through the copy of the deed of Power-ofAttorney from the Settlement File. It was executed by Mst. Walayat Begum and Mst. Ghulam Sakina in favour of Siraj-ul-Haq on 12th March, 1935 authorising the latter to manage their movable and immovable property situate in Bahawalpur State and Batala District Gurdaspur. The attorney was also authorized to lease out the property, recover the rent and to conduct cases in the Civil Court and High Court in respect of the property aforesaid. By no stretch of imagination, through this deed, which was executed in the year 1935, power can be considered to have been conferred on the attorney to represent the executants before the Settlement authorities. 18. The well-known principle enunciated by their Lordships of the Privy Council in Bryant v. La Branque De Peuple for construction of deed Power of Attorney is that : "Nor was it disputed that powers of attorney are to be construed strictly, that is to say, that where an act purporting to be done under a power of attorney is challenged as being in excess of the authority conferred by the power, it is necessary to show, that on a fair construction of the whole instrument, the authority in question is to be found within the four corners of the instrument either in express terms or by necessary implication." ' If the power of attorney is construed in the light of this precedent which has been followed in numerous cases in the Indo-Pak Sub-Continent, it is difficult to sustain that the application, dated 24th February, 1968, was made or could have been made under the said instrument of power of attorney, on behalf of the two ladies. It is well-settled rule of construction of power of attorney, that operative part of the deed is controlled by the recitals. The general words used in the later part of the deed are relatable to the main object, namely, the management of the property situate in Bahawalpur State and Batala There is thus, no force in the submission of the learned counsel for the respondents that the application, dated 24th February, 1968 was filed by Siraj-ul-Haq on behalf or the petitioners' predecessor-in-interest as well, and the order passed therein is binding on them. Though in the application, dated 24th February, 1968 the pronoun "we" has been used by the applicant, namely, Siraj-ul-Haq, but there is no indication that it was filed by him on behalf of the other two transferees. No doubt in his statement, dated 10th October, 1960, Siraj-ul-Haq, posed1 2 3 4 5
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himself to be the attorney for Mst. Walayat Begum and Mst. Ghulam Sakina, but his this unilateral statement cannot be considered as an authority to bind the ladies resulting in their deprivation of valuable rights in the property. It is to be noticed that Mst. Walayat Begum died on 12th May, 1960. With her death even the deed of power of attorney, dated 12th March, 1935 came to an end. 1 am, therefore, inclined to hold that the application dated 24th February, 1968, and the order passed therein by the Settlement Commissioner (Admn. And Policy), was in no manner binding on the petitioner's predecessors-in-interest, and they were not bound to challenge it. 19. As regards the argument that the petitioner's predecessor-in-interest should have filed objections against the inclusion of their property in the auction list, it is evident from the particulars of the property given in the auction list, as reproduced in the earlier part of this judgment, that in the column relating to the occupants of the property, only the name of Siraj-ul-Haq was shown. The…
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