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Petitioner: ABDUL KHALIQ through L.Rs, and otherss VS Respondent: Mrs. RAZIA BEGUM through L.Rs, and others
Court Name: Sindh High Court Judge(s): Nazar Akbar Title:ABDUL KHALIQ through L.Rs, and otherss vs Mrs. RAZIA BEGUM through L.Rs,
and others Case No.: Constitutional Petitions Nos.S-49, S-50 and S-76 of 1994 Date of Judgment:2016-02-15 Reported As: 2016 YLR 2176 Result: Order accordingly Judgment ORDER NAZAR AKBAR, J.---By this common judgment, I intend to dispose of three Constitution Petitions bearing Nos.S-49 and S-50 of 1994 both filed by Petitioner Abdul Khaliq son of late Abdul Ghani, the predecessors in interest of Mst. Anwer Jehan Begum and Constitution Petition No,S-76 of 1994 filed by Asghari Begum and others, the predecessors in interest of Dr. A.H. Qureshi and Mohammad Akhtar Khan against Mst. Razia Begum, through her legal heirs (Respondent No,1 in C.Ps. Nos.S-49 and S-50 of 1994) and (Respondent No,2 in C.P. No,S-76 of 1994) and others including the Secretary (RS&EP) Board of Revenue Sindh (Notified Officer under Section 2(2) of Evacuee Trust Property and Displaced Persons Laws (Repeal) Act, 1975 (the Notified Officer). ' Applications, one filed by Razia Begum and the other by Anwar Jehan Begum against the appellate orders dated 16.4.1969 passed by Additional Settlement Commissioner on Appeal No, ASCK-42/ 1959 filed by Mst. Razia Begum. The orders impugned are in respect of a building on Plot No,J.M.308. Custodian No,VII-D-279, A/11 situated on Motilal Nehru Road, renamed as Jigar Muradabadi Road, Jamshed Quarters. (hereinafter The House). 3. These constitution petitions have history of 57 years of litigations between the same parties and now through their legal heirs. Briefly stated, the basis of dispute amongst the Petitioners and the private Respondents started when the House in their possession was required to be disposed of through transfer to the occupants in terms of Notification dated 21.05.1959 issued by the official respondents inviting applications under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter the D.P. Act, 1958). Each of the Petitioners and private Respondents, in possession of different portions of the House, filed their claim before the. Deputy Settlement
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Commissioner for transfer of respective portions of the House to them. The various authorities functioning under the Settlement Laws on repeal are now vested in the Secretary (R.S. And E.P.) Board of Revenue, Sindh/Notified Officer under Section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The description of the present Petitioners and origin of their claims are as follows:- i) The Petitioners in C.Ps. Nos.49 and 50 of 1994 are legal heirs of original allottee namely Mst. Anwar Jehan Begum, who had filed C.H. Form No,168/XXIII. ' She has claimed transfer of a portion on the first floor of the House in her possession as allottee. ii) Petitioners Nos.1 to 12 in C.P. No,76/1994 are legal heirs of original allottee, Dr. A.H. Qureshi, who had filed C.H. Form No,20/XXIII and claimed transfer of the other portion on the first floor and a room on the ground floor of the House to him. iii) Petitioners Nos.13 and 13-A in C.P. No,76/1994 are the legal heirs of non-claimant namely Muhammad Akhtar Khan, who had filed N.C.H. Form No,22/XXIII and claimed transfer of other portion of ground floor in his possession. (iv) Respondent No,1 in C.Ps. No,49 and 50 of 1994, who is also Respondent No,2 in C.P. No,76/1994 are legal heirs of Razia Begum Anis, she had filed C.H. Form No,162/XXIII and claimed transfer of a portion of the ground floor in her possession; 4. The respective claims filed through the above mentioned four Forms by the predecessor in interest of the Petitioners and the private Respondents had been examined by different forums available under the Settlement Laws right from 1959 onward to settle the fate of the House according to the D.P. Act, 1958. In this regard the first order dated 07.11.1959 was passed by Deputy Settlement Commissioner. In his order he observed that the; "House No,A-11, consists of one main building having two tenements, one on the ground floor and one on the upper floor." ' However, he ordered that the main building (the House) be transferred to Mst. Anwar Jehan Begum purely on the ground of prior possession. This order of Deputy Settlement Commissioner dated 07.11.1959 was challenged in appeals by two claimants Before the Additional Settlement Commissioner. First appeal was filed by Dr. A.H. Qureshi, the predecessor in interest in C.P. No,76 of 1994 bearing Appeal No, ASCK-23/1959; and, second was filed by Respondent No,1 (Mst. Razia Begum) bearing Appeal No,ASCK-42/ 1959. The appeal of Mr. A.H. Qureshi was dismissed summarily by the Additional Settlement Commissioner by order dated 26.11.1959 on the sole ground that; "the law on the point that a bungalow type house should be transferred to only one party in preference to other who came in possession later. In the absence of any documentary proof that the respondent came in possession 3 days before the allotment respondent's son. I upheld the views of the learned Deputy Settlement Commissioner." ' However, Mst. Razia Begum, pending her appeal also approached the. Chief Settlement Com.Missioner through an informal application to challenge the order dated 07.11.1959. The Chief Settlement Commissioner on the Miscellaneous application of Mrs. Razia Begum on 10.03.1960 passed the following order:- "The main house is not capable of any division and has been occupied in a haphazard manner by its present occupants. With the approval of the Central Government, I treat this case under Section 10(a) of the Displaced Persons (Compensation and Rehabilitation) Act, and would dispose of the main house in a restricted auction between its present occupants." ' Mrs. Anwar Jehan Begum, predecessor in interest of Petitioners of C.Ps. Nos.S-49 and S-50 of 1994, challenged the above order in Writ jurisdiction of this Court through C.P. No,D-163 of 1960 and got the above order set-aside by judgment dated 23.05.1961. This judgment is reported in PLD 1961 (W.P.) Karachi 694 as Mst. Anwar Jehan Begum v. The Chief Settlement Commissioner. This
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judgment is part of R&P and it was a kind of MUST READ for the Notified Office. Had he gone through it he could have learned how to respect the word of Law and its spirit and how the Law is to be applied in given facts of a case to protect the rights of the parties. 5. In the above back ground, Mrs. Razia Begum (Respondent) was left with hopes only in the outcome of her Appeal No,ASCK-42/1959 which was still pending before the Additional Settlement Commissioner. By a comprehensive order dated 16.04.1969, the Additional Settlement Commissioner in Appeal No,ASCK42/1959 modified the order of Deputy Settlement Commissioner dated 07.11,1959 and held that the building (the House) is divisible into five residential units, therefore, he ordered as follows:- "I order that the five units should be disposed of in the following manners:- 1. Tenement in possession of Mst. Razia Begum on the ground floor should be transferred to her on evaluation price against her C. H. , Form. 2. Tenement in possession of Mohammad Akhtar Khan on the ground floor should be disposed of in accordance with law. 3. Tenement on the ground floor which is in possession of Dr. A.H. Qureshi should be disposed of in accordance with law. 4. Tenement in possession of Dr. A.H. Qureshi and his family on the 1st floor should be disposed of in accordance with law. 5. Tenement in possession of Mst. Anwar Jehan Begum should be transferred to her on evaluation price against her C.H. Form. ' The open space which is now being used by the occupants of the building in question as common will continue to remain common with the same rights" ' The perusal of the above order shows that out of four, two displaced persons namely Mrs. Anwar Jehan Begum, the Petitioner in C.Ps. Nos.49 and 50 of 1994 and Mrs. Razia Begum, Respondent No,1 were accommodated for transfer of their first floor and ground floor tenements respectively. The remaining two ,displaced persons namely Mohammad Alchtar Khan and Dr. A.H. Qureshi were practically ousted' from the so-called tenement in their possession as their request to transfer the same to them was not allowed and instead they were directed to file their claim/ application under Settlement Scheme No,VIII within 15 days in the same order in following terms; "I further realize that it will be very hard for Mr. Mohammad Akhtar Khan, and Dr. A.H. Qureshi (and his family) that their case, are not being considered by me on the technical grounds mentioned above although admittedly, they are in possession of their respective tenements since long before 1958 and they were otherwise entitled for transfer. However, it will be open to them to make applications for the transfer of their respective tenements under Scheme No, VIII before the Deputy Settlement Commissioner who should entertain the same and decide their entitlement if 'they make such application within 15 days of the date of this order." 6. The above order of Additional Settlement Commissioner dated 16.04.1969 in Appeal No,ASCK- 42/1959 was challenged before the Settlement Commissioner in Revision under Section 20(3) of the DP Act, 1958 by Mst. Razia Begum herself through Revision No,SCK40/1969 and by Mst. Anwar Jehan Begum through Revision No,SCK-44/1969. The Settlement Commissioner by a consolidated order dated 25.6.1973 while setting aside the order of Additional Settlement Commissioner dated 16.04.1969 held that Mst. Razia Begum is entitled for transfer of entire ground floor and Mst. Anwar Jehan Begum is entitled for transfer of entire first floor. Mst. Razia Begum, (respondent in the present petitions) has accepted the decision as she did not challenge it. It is pertinent to mention here that Dr. A.H. Qureshi and Mr. Mohammad Aldnar Khan had accepted the order of Additional Settlement Commissioner dated 16.04.1969 as they have neither filed cross objection to the said Revisions nor they preferred Revisions against the said order. However, they filed constitutional petitions against the order of Settlement Commissioner dated 25.6.1973 in Revisions filed by Mst.
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Razia Begum and Mst. Anwer Jehan Begum. Thus three contestants namely (i) Mst. Anwar Jehan Begum through C.P.No,484/1974 (ii) Muhammad Akhtar Khan through C.P.No,250/1974 and (iii) Asghari Begum, the successor in interest of Dr. A.H. Qureshi and others through C.P. No,1189/74 challenged the order of Settlement Commissioner dated 25.06.1973 before this Court under its constitutional jurisdiction. These three petitions were allowed by a common judgment dated 20.5.1978 by this Court whereby the common order dated 25.6.1973 in the two Revision Applications by the Settlement Commissioner was set-aside and the order of Additional Settlement Commissioner dated 16.04.1969 reproduced in para-5 above in Appeal No,ASCK-42/1959 filed by Mst. Razia Begum was restored. Again on restoration of order of Additional Settlement Commissioner by High Court, the Petitioners in C.P. No,250 of 1974 and C.P. No,1189 of 1994 namely Mohammad Akhtar Khan and Dr. A.H. Qureshi did not challenge it and accepted the order dated 16.04.1969 passed by Additional Settlement Commissioner. 7. Only Mst. Anwar Jehan Begum (Petitioner in C.Ps. Nos.49 and 50 of 1994) challenged the order of High Court passed in her C.P. No,484/1974 before the Hon'ble Supreme Court of Pakistan in Civil Appeal No,207-K of 1980. The Hon'ble Supreme Court by order dated 12.2.1991 set aside the judgment of High Court and remanded the case to the Notified Officer for final disposal of the matter (Revisions Nos.SCK-40 and SCK-44 of 1969) taking all relevant facts into consideration. On remand the Notified Officer by order dated 04.01.1994 allowed Revision No,40 of 1969 filed by Mst. Razia Begum and declared that the House is a single residential unit and only Respondent No,1 (Razia Begum) is entitled for its transfer and dismissed Revision No,44 of 1969 filed Mst. Anwer Jehan Begum. The Petitioners herein have challenged the said order dated 04.01.1994 through the petitions in hand. 8. I have heard Mr. Abdul Khaliq, who appeared in person in C.Ps. Nos. S-49 and 50 of 1994 on two different dates and attempted to plead his case but unfortunately he was unable to assist the Court and got frustrated on few initial queries from the Court and abandoned his arguments. However, I have gone through the memo of petitions and the grounds taken therein to ensure that no injustice should be done to the party whose frustration was obvious on facing the litigation for more than 50 years. I have also heard Mr. M.G. Dastagir, advocate for the Petitioner in C.P. No,S- 76/1994 and Mr. Nafees Siddiqui, advocate representing Mst, Razia Begum, (Respondent). I have also minutely examined the R&P of the case since 1959. Luckily I came across an order dated 07-6- 1994 in C.P. No,S-49/ 1994 and thus came to know that R&P was produced by an Inspector of the Evacuee Property Board and it was ordered to be retained till the disposal of the petition. None of the counsel for the Petitioners and private respondent has referred to R&P during their arguments and therefore, I had to go through the each file by myself in search of an answer to the question of divisibility of the House in accordance with contemporaneous law with regard to the division of the bungalows. 9. Mr. M.G. Dastagir, learned counsel for the Petitioners in C.P. No,S-76 of 1994 mainly contended that the Notified Officer had failed to appreciate the definition of the House and the possession in terms of Sections 2(4) and 2(6) of the D.P Act, 1958 and non-suited Dr. A.H. Qureshi, the predecessor in interest of Petitioner of Asghari Begum, and others who were in occupation of a portion of small room on the ground floor as well as two small rooms on the 1st floor and also non-suit Mohammad Akhtar Khan who was in possession of a portion on the ground floor. Mr. Nafees Siddiqui, learned counsel for Mst. Razia Begum (Respondent herein) has supported the impugned judgment by raising preliminary legal objections to the maintainability of these petitions on the ground that factual controversy having been decided by the forum under the hierarchy of Settlement Laws cannot be interfered with in writ jurisdiction by this Court. His other contentions were that the Petitioners had alternate, remedy against the impugned order and the Respondent (Razia. Begum) was found in possession of the House prior to the possession of others. Her claim was on better
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footing than the claim of the Petitioners through Mst. Anwar Jehan Begum who was indirect claimant and Mohammad Akhtar Khan a non-claimant hence other claimants were rightly non- suited on merit, too. 10. I have carefully examined the respective contentions of the counsel and also gone through the relevant provisions of D.P. Act, 1958 as well as Manual of Settlement, Government of Pakistan published in 1960 since the learned Notified Officer has referred to the said Manual. As to the question of maintainability of these petitions raised by Mr. Nafees Siddiqui, learned counsel for the Respondent (Mst. Razia Begum), suffice, is to say that the controversy of the division of the House in terms of D.P. Act, 1968 has repeatedly been held amenable to the constitutional jurisdiction of High Court if it is found that the decision of Settlement Authorities in this regard is not an speaking order or showing lack of application of judicial mind to the provisions of section 2(4) of the D.P. Act, 1958. The very fact that this case has been remanded by Supreme Court to the Notified Officer has reached the Supreme Court through a Constitution Petition filed by Mst. Anwar Jehan Begum in this Court itself indicates that the petition was maintainable before the High Court. Neither the High Court nor the Hon'ble Supreme Court have held that the Constitution Petitions were not maintainable. Not only this, the following three case laws consecutively reported in PLD 1991 SC are direct answer to the question of maintainability of these Petitions in the given facts and circumstances of the petitions in hand. The cases are:- i) Barkat Ali v. Settlement and Rehabilitation Commissioner (PLD 1991 SC 610) ii). Mst. Shahjahan Begum v. Mst. Shabbir Fatima and another (PLD 1991 SC 614) iii) Mst. Shahzada Begum v. Ahmed Kamal and 18 others (PLD 1991 SC 617) ' In the case of Mst. Shahjahan Begum the Hon'ble Supreme Court held that:--- ' On account of these reasons the officer further observed that "I have no alternative but to hold that Mst. Shabbir Fatima has got a preferential claim over Mst. Shah Jehan Begum". While observing so the officer once again repeated his earlier view that the house was indivisible. As analysed above, the power exercisable under the Proviso to section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it has to be pointed out, was not at all exercised as a consideration, independent of the otherwise "preferential claim" of the parties. The power exercised under the Proviso is relatable to the physical aspect of the house and not the characteristics of the rights of the applicants for its transfer. Thus it practically amounted to failure of the officer to apply mind to and exercise power under Proviso to section 2(4). As a necessary corollary of his findings otherwise of fact, on inspection, he would have divided the house in accordance with the possession but on wrong principle (looking at the better qualifications of the respondent's side) on extraneous grounds refused to divide the house. Same error with respect has been committed by the High Court in upholding the order of the Settlement Commissioner." (emphasis provided) ' A similar view was taken in the case of Shahzada Begum and reliance was also placed on a case reported in PLD 1972 SC 52. The relevant observations from the case of Shahzada Begum are quoted below:- ' "In this case the order impugned before the High Court indeed did not show application of mind to the question as to whether the house was or was not divisible on account of its physical characteristics, instead on account of other considerations like preferential rights of the parties, vis-a-vis, each other it was treated as indivisible. ' Proviso to section 2(4) of the. Displaced Persons (Compensation and Rehabilitation) Act through the passage of time stands interpreted by the Superior Courts in such a manner that failure to apply independent mind to the question of divisibility has been treated as failure to exercise power vested in the officer. This properly is in line with the spirit of the legislation and its main and important objects one of them being to accommodate and adjust as many displaced persons as
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possible. If this principle underlying the Proviso to section 2(4) would have been kept in mind by the concerned Settlement Authority the results would have been different. Thus it is a case in the above context of failure or refusal to exercise power under section 2(4) and thus the order impugned before the High Court was rendered without lawful authority. The High Court rightly in exercise of its Writ jurisdiction declared it so. Hence there is no justification for interference. This appeal fails and is dismissed. There shall be no order as to costs."(emphasis provided) ' The other preliminary legal objection in view of the rulings of the Hon'ble Supreme Court, mentioned above, too, have no force. However, it must be mentioned here that the learned counsel for the respondent (Razia Begum) contended that the impugned order was appeal able and thus alternate remedy was available. But he has not pointed out the forum of alternate remedy/appeal against the order passed on Revision Applications under Section 20(3) of D.P. Act, 1958 on repeal by the Notified Officer in terms of Section 2(2) of the Evacuee Property and Displaced Persons (Repeal) Act, 1975. Thus, 1 hold that these petitions are maintainable. 11. On merit, the analysis of the impugned order suggests that the learned Notified Officer while holding the House indivisible appears to have skipped certain provisions of contemporaneous law and the binding authoritative observation of superior Court. The first and foremost thing which he seems to have missed was the fact that he has been dealing with the question of providing accommodation to the Displaced Persons under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In this context, I may refer again to the observation of Hon'ble Supreme Court in the case of Shahzada Begum quoted in Para-10 above. The other examples of lacking of application of mind by Notified Officer may be appreciated from his failure to follow the instructions/ guidelines issued by Chief Settlement Commissioner through notification titled Instructions for the transfer of houses and shops in the possession of more than one person (Memo. No . Comp- Reh/59/5242 dated 22nd October 1959, (hereinafter the Instructions Notification). Learned Notified Officer in the impugned judgment has quoted para 2(b) from the Instructions Notification and unfortunately he skipped para 2(a) from the same notification. I would like to reproduce below para 2(a) along with para 2(b) and also para-3 from the said Notification since it has also been quoted by Notified Officer in the impugned order:- "2. The Chief Settlement Commissioner has decided that the following broad principles should be kept in view while disposing of houses and shops. (1) ------------------------------- (2) (a) If a building can conveniently be partitioned vertically down to the ground floor so as to divide it into independent and self-contained residential or business units each with an independent access, such partition may be carried out where necessary and each unit transferred separately. While carrying out such partition, sufficient space should be allowed for passages and other easements. (b) Bungalows should as far as possible, be transferred as complete units except in very obvious cases where they can be divided into more than one independent and complete bungalow. (c) ..................... (d) ..................... 3. A claimant in occupation of a house or shop, who is entitled to the transfer of the property will, however, have preference over a claimant who applied on the basis of the occupation of such house or shop by his parent, son, daughter or spouse." ' Similarly learned Notified Officer while relying on the Instructions Notification of October, 1959 failed to look into the amendment made in the said notification in November, 1959 through Memo. No,7616- Comp-Reh/59 dated 30th November, 1959. It is also worth reproduction. It is as under: "Transfer of houses and shops in possession of more than one persons. [Memo. No, 7616- Comprehend/59 dated 30th November, 195]. It has been reported that the instructions contained
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in this office Memorandum No, Comp-Reh/59 dated 22nd October, 1959, on the above subject have created certain practical difficulties particularly in cases where a single claimant in occupation of a portion of the building has applied for the transfer of a complete building to him consisting of more than one house or shop. The Chief Settlement Commissioner has, therefore, on reconsideration decided that the Deputy Settlement Commissioners may use their discretion and if they are satisfied that the transfer of the whole building to one person will result in serious hardship and dislocate other persons occupying the same building they may transfer only the portion in occupation of such person if it has an independent access and transfer the other residential or business units in the building to other persons entitled to their transfer. Normally not more than one shop and one residential unit above it comprising a self-contained independent unit should be transferred to one person. In case, however, persons occupying a building are prepared to take the whole building jointly by mutual agreement, which will result in the settlement of a majority of such persons the whole building may be transferred to them on the basis such agreement provided they are entitled to the transfer of the portions in their occupation. In order to enable the Deputy Settlement Commissioners to make judicious use of their discretion it has been decided to delete the words "In such cases also efforts should be made to transfer the whole building to one persons if practicable" occurring in Principle No, (3) on page 3 of the memorandum referred to above." (emphasis provided) 12. The perusal of above Para 2(a) and the amendment, in the said Instructions Notification reinforces the authoritative observation of the Hon'ble Supreme Court in the case of Shahzada Begum (supra) that "the spirit of legislation…
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