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Petitioner: Mst. KISHWAR SULTAN JEHAN BEGUM VS Respondent: SETTLEMENT COMMISSIONER (INDUSTRIES) Etc.
Court Name: Supreme Court of Pakistan Judge(s): Aslam Riaz Hussain, M. S. H. Qureshi Title:Mst. KISHWAR SULTAN JEHAN BEGUM vs SETTLEMENT COMMISSIONER
(INDUSTRIES) Etc. Case No.: Civil Petition for Special Leave to Appeal No. 79 of 1981 I. C. A. No. 563 of 1980 Date of Judgment:1983-11-01 Reported As: 1983 SCMR 254 Result: Petition dismissed Judgment ORDER ASLAM RIAZ HUSSAIN, J.-Asst. Kishwar Sultan Jehan Begum seeks Leave to Appeal against the order of a Division Bench of the Lahore High Court, dated 9-12-1980, dismissing her I. C. A., in a settlement matter. The dispute in this case relates to an evacuee cinema house known as Capitol Cinema situated at Abbot Road, Lahore. The history of the case so far as the petitioner is concerned began when the said cinema was put to auction on 12th April, 1962, and she (Mst. Kishwar Jilani petitioner) made the highest bid of Rs. 36 lacs which was accepted and the possession thereof was handed over to her on 4-6-1962. She deposited the compensation books worth Rs. 9,53,238 towards the auction price and the balance was to be paid in 36 monthly equal instalments. The trouble arose thereafter when she failed to pay the instalments towards the balance of the auction price. According to her she had been making efforts to pay the balance by depositing further compensation books but according to the department some of the books were not genuine and further that she never made any serious attempt to fulfil her obligations of paying the entire price and, in fact, avoided paying it. During this period, however, she kept herself as well as the department busy by agitating the matter before various Settlement authorities and in differ--ent Courts. She moved as many as 7 separate writ petitions in the High Court; filed two I. C. As. Including the one the judgment whereof is under con--sideration, and moved the Supreme Court twice, one through C. P. No. 336/77 and again through Review Petition (C. R. No. 10-R-79), with respect to the same petition and has now moved this Court for the third time through the present petition.
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2. The history of this litigation is too long to be reproduced here in detail but for an understanding of the case a brief resume thereof may be given from 25th October, 1967 onwards when she was given a notice by the Additional Settlement Commissioner (Industries) ordering her to pay the balance of the price amounting to Rs. 28,14,818. She filed an appeal against this order before the Settlement Commissioner (Industries) which was accepted by him on 26-12-1972, remanding the case to the Additional Settlement Commissioner witha direction that the same be re-examined. In the meanwhile the petitioner bad deposited some mere compensation books with the department. But after examining the same the department informed her on 27-2-1973 that some of the compensation books deposited by her for adjust--ment of the- transfer price pertained to the Province of Sind and could not, therefore, be utilized in Punjab. The petitioner challenged the department's refusal to accept the compensation books, through Writ Petition No. 257-R-73, which was disposed of as premature with the observation that she may approach the department for the acceptance of the said compensation books. The matter was then again taken up by the Additional Settlement Commissioner (Industries), who dealt with it at great length and passed an order on 9-6-1973, whereby he not only allowed the adjustment of the afore-mentioned compensa--petition books but also permitted her to clear all the outstanding dues either in cash or through association, within 30 days. Instead of complying with this order and paying the price she challenged it through an appeal before the Settlement Commissioner (Industries). The appeal was entrusted to Sardar Hidayat Ullah Mokel, but the petitioner applied for its transfer to some other Settlement Commissioner, as the above-mentioned officer had been appearing against her in the same case, as Departmental Advocate. The prayer for transfer was allowed but in the meanwhile, Mr. Hidayat Ullah Mokel directed that the cinema be sealed. The petitioner, therefore, filed a writ petition (No. 762-R-74) against the said order of sealing which was accepted. She then filed a contempt application against the concerned officer of the depart--ment but the same was dismissed on 25-4-1974 by a Full Bench of the Lahore High Court. During the pendency of her appeal against the order dated 9-6-1973, which had been transferred to M. A. Wasti, Additional Settlement Commissioner (Industries), the department informed her vide letter dated 9-1-1974, that some of the compensation books deposited by her were found to be bogus, and that she should deposit the outstanding dues within 30 days failing which the transfer shall be cancelled. She was again informed on 24-1-1916 that the compensation books of the value of Rs. 10,22,848 had been found to be not genuine and that, therefore, she should deposit the equivalent amount within 30 days. These notices were challenged by the petitioner in the High Court through Writ Petition No. 259-R/76. This writ petition was still pending when, on 26-2-1976, Mr. M. A. Wasti, Settlement Commissioner (Inds.) dismissed the petitioner's appeal filed by her against the order of Additional Settlement Commissioner (Inds.), dated 9-6-1973. In view of the order of Settlement Commissioner the High Court dismissed Writ Petition No. 259-R-76, as having become infructuous. The petitioner then challenged the above-noted order of the Settlement Commissioner, dated 26-2-1976, as well as that of the Additional Settlement Commissioner dated 9-6-1973, through Writ Petition No. 322-R- 1976. This petition was disposed of by Mr. Justice A. S. Salam by judgment dated 24-3-1977. During the course of hearing of the said writ petition the petitioner made an offer which has been recorded by the learned Judge in the following words:- "Finally, the learned counsel for the petitioner has submitted that although according to the case of the petitioner, the petitioner has paid more than the auction transfer price, yet for settlement of the dispute, the petitioner is prepared that if the Settlement authorities make out the account in the presence of the petitioner and the balance against the petitioner is found up to four lacs of rupees the petitioner shall pay the same and all this may be done within a period of two months. In case the balance is found more than four lacs of rupees, the petitioner would pay the same in three
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equal six monthly instalments in case of default, the transfer in favour of the petitioner shall stand transferred." 3. This offer was accepted by the department whereupon the learned High Court Judge held that the order dated 9-6-1973 passed by the Additional Settlement Commissioner (Industries) and the order passed by the Settlement Commissioner (Industries) on 26-2-1976, did not call for any interference in view of acceptance by the department of the offer made by the petitioner. He, however, disposed of the writ petition by a consent order dated 24-3-1977, and observed as follows in paragraphs 7 and 9 of the judgment:- "7. After hearing the learned Counsel for the parties at great length and perusing the two impugned orders of the learned Additional Settlement Commissioner (Industries), dated 9-6-1973 and the learned Settlement Commissioner (Ind.) dated 26-2-1976, one comes to feel that the petitioner purchased in public auction a Cinema situated in Lahore in the year 1962. Even after fifteen years, the transfer price has not been paid or settled to have been paid. All fault may not lie at the doors of the petitioner as payments were not accepted by the Settlement Depart--ment when the petitioner approached the Department and the Compen--sation Books were not adjusted straightway when those were presented. But all the same, the Settlement Department has shown all indulgence to the petitioner and allowed the petitioner to derive full benefit from the Cinema for a period over fifteen years. Now, the learned counsel for the Settlement Department has submitted that for the settlement of the account, if the petitioner even now brings back the seven Compen-- sation Books returned to their owners and the owners or their autho--rized agents agree to the adjustment, and, the deferred amounts being available, the Department would adjust the deferred amounts from the Compensation Books from Sind if the claimants or their authorized agents appear to show their willingness for adjustment and deferred amounts are proved to be available. This the learned counsel for the Settlement Department has submitted must be done as stated by the learned counsel for the petitioner within two months. The insistence of the learned counsel for the Settlement Department with vehemence is that the petitioner must pay the auction price and settle the accounts within two months and pay ire accordance with the statement of the learned counsel for the petitioner, i.e. Within the aforesaid two months if the balance is up to four lacs, or, in three equal six monthly instal--ments. The stand of the Settlement Department appears to be quite reasonable and just in the circumstances of the case." "9. In view of what has been stated above in last but one paragraph, thetwo impugned orders of the learned Additional Settlement `Commis--sioner (Industries), dated 9-6-1973 and of the learned Settlement Commissioner (Industries), dated 26-2-1976 do not call for any interference except to this extent that the petitioner and the latter shall account for the payments received, receive further payments through Compensation Books, as earlier ordered by the Central Government, if the persons entitled thereto be available therein, received the seven Compensation Books referred to above and returned to their owners, if those are again produced before the Settlement authorities and the claimants or their authorized agents agree to adjustment of the deferred amounts proved to be available in the Compensation Books, and, also shall adjust those Compensation Books from Sind which the petitioner had earlier submitted if the petitioner produces the claimants or their authorized agents and they agree to adjustment of the deferred amounts proved to be available in the Compensation Books by the concerned authorities. The petitioner shall do all this within a period of two months and in case the balance struck is up to four lacs of rupees, the petitioner shall pay the same within the aforesaid period of two months. If the balance is more, the petitioner shall pay that either through adjustment from the Compensation Books as allowed by the Central Government earlier, or, in cash in three six monthly equal instalments. In case the petitioner fails to make the payment within the aforesaid two months, or, to pay any instalment, if that be the case, by the due dates, the property shall stand resumed from
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the date default in pursuance of the statement of the learned counsel forthe petitioner and the orders impugned in this petition." Pursuant to the aforementioned observations of the High Court, the petitioner addressed a letter on the 1st of April, 1977 before the Additional Settlement Commissioner (Ind.) enquiring as to her total liability. The Additional Settlement Commissioner (Ind.) informed her vide letter dated 28th of April, 1977, that an amount of Rs. 22,04, 360 was due from her, She was further asked to appear, either personally or through an authorized agent, to get the amount reconciled. But she neither appeared personally nor sent an authorized agent, nor did she care to make any payment. Instead, she filed another Writ Petition No. 829-R-1977 praying, inter alia, that the order dated the 24th of March, 1977 passed by Mr. Justice A. S. Salam in Writ Petition No. 322-R-76, be suspended. It was fixed before the same learned Judge who dismissed the writ petition on the 17th of June, 1977, observing that it was an attempt to postpone clearance of her liability without making any reference whatsoever to Writ Petition No. 829-R-77 or the decision of the High Court thereon. The petitioner then filed a petition for Leave to Appeal (C.P.S.L.A. No. 336 of 1977) challenging the consent order, dated the 24th of March, 1977 passed in Writ Petition No. 332-R-76. The petition was dismissed by a Bench of three Judges of this Court vide order dated 15th February, 1978, whereby it upheld the consent orders of the High Court dated 24-3-1977. It was, however, observed that since the period stipulated in the order dated the 24th of March, 1977, for payment of the balance auction price by the petitioner had expired during the pendency of the C.P.S.L.A., the counsel for the department gave an offer that the matter shall not be considered as foreclosed if the petitioner paid Rs. 4 lacs in cash within a fortnight and for the balance amount she should contact the concerned Settlement officials to settle the accounts within one month, and thereafter, to pay the balance amount in three equal six monthly instalments. The Court, however, left it to the sweet will of the petitioner whether or not to avail the opportunity. After some time the petitioner filed Civil Review Petition (No. 10-R of 1979) against the order dismissing the C.P.S.L.A. Seeking inter alter, on extension in time for making payment, but the prayer was refused, and the review petition dismissed on the 6th of February, 1980. The petitioner did not avail the new offer given on behalf of the department. As such the department naturally took the view that since the order of the High Court dated 24-3-1977 had been upheld even by the Supreme Court and the matter stood finally concluded by the dismissal of the petitioner's Civil Review Petition (No. 10-R-79), the aforementioned order of the High Court (dated 24-3-1977) that in case of default on the part of the petitioner to make payment of the balance of the transfer price, as agreed, the property shall stand resumed, became operative. The Additional Settlement Commissioner (Inds.), therefore, ordered the sealing of the cinema on 4-5-1978 and the same was sealed on the 6th of May, 1978. Thereafter, the Chief Settlement Commissioner ordered the re-auction of the property and 28th of September, 1980 was fixed as the data for that purpose. In order 'to get the auction stopped and to gain more time the petitioner then filed an application before the Member Board of Revenue Chief Settlement Commissioner on 21-9-1980 praying that she should be allowed to make payment of Rs. 22 lacs towards the price of the cinema. The Member Board of Revenue marked in for disposal to Mr. Muhammad Nawaz Hashmi, Settlement, (Inds.) who dismissed the same can the 22nd of September, 1980. Without making any disclosure of the aforesaid application, dated 21-9-1980 and its fate, the petitioner, on the 23rd of September, 1980 filed yet another Writ Petition (No. 721-R-1980) before the High Court whereby she sought to challenge the order of the Additional Settlement Commissioner dated the 6th of May, 1978 where--by the cinema had been sealed, and also the order of the Chief Settlement Commissioner directing the disposal of the property by auction to be held on the 28th of September, 1980. The writ petition was, however, withdrawn by the petitioner's counsel on 24-9-1980 without any permission to file fresh one. And on the very next day on 25-9- 1980 she filed yet another Writ Petition (No. 732-R-1980) which was dismissed in limineby Mr. Justice
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A. S. Salam on the 27th of September, 1980 on the ground that the petitioner having failed to comply with the consent order dated 24th March, 1977, and also having failed to avail the offer given on behalf of the department in the Supreme Court on the 15th of February, 1978 during the hearing of C.P.L.A. No. 336 of 1977, the auction stood cancelled and, therefore, the property was rightly resumed. She then filed an Intra-Court Appeal (No. 563 of 1980) but that too was dismissed in limineby a Division Bench of the High Court. Still not having been satisfiedshe has again come to this Court seeking Leave to Appeal against the aforementioned order of the High Court. 4. We have heard the learned counsel for the petitioners at considerable length and have gone through the various orders passed by the Settlement authorities he judgments of the High Court in various writ petitions and the earlier judgment of this Court, referred to above. The contentions raised by the learned counsel for the petitioners are brieflyas follows :- (i) That since no formal order of resumption was passed after the expiry of one month's period prescribed by the Additional Settlement Commis--sioner (Inds.) in his order dated 9-6-1973, the property could not be ordered to be disposed of by auction as ordered by the Chief Settlement Commissioner in September, 1980 ; . (ii) That since the department had not complied with the orders of the High Court dated 24-3-1976 (passed in Writ Petition No. 322-R-76), inasmuch as despite repeated demands by the petitioner it had not informed her within the prescribed period of two months as to the amount due from her and did not issue a proper demand notice 'for payment of the same, or the payment of first instalment thereof, no default in discharge of the outstanding liability could be attributed to the petitioner ; (iii) That the petitioner had wrongly returned compensation books worth about Rs. 8 lacs deposited by the claimants without her consent ; (iv) That the department couldnot have declared the compensation books worth Rs. 10,02,848 deposited by her, as bogus, without associa--ting her or the original claimants, in the inquiry, if any, held by the department ; and (v) That the department had paid more than 25 % of the total auction price before the introduction of the reconstituted Scheme No. VIII, amended by Notification No: 13.4-POL/73, dated 20-10-1973, which provided that in cases where more than 25 % of the total transfer price had already been paid no resumption proceedings could be initiated and the property would be transferred to the applicant in accordance with the provisions of paragraph 11 of the said Scheme. Therefore, the order of resumption of the Cinema was illegal. 5. We have carefully considered these contentions in the light of the arguments advanced by the learned counsel for the respondents and find that they have no force. As to the first contention it would be recalled that the Additional Settle--ment Commissioner (Inds.) by his order dated 9-6-1973 had directed the petitioner to clear the entire outstanding amount within 30 days of the order and also pointed out that in case of her failure to do so she "will be a default and action with regard to the resumption of property will be taken". As already mentioned, she filed an appeal against this order before the Settle--ment Commissioner (Inds.) which was dismissed by M. A. Wasti, by his order dated 26-2-1976. It is these two orders that the petitioner had challenged before the High Court through Writ Petition No. 322-R-76, which was disposed of by Mr. Justice A. S. Salam of the Lahore High Court by his order dated .4 24-3-1977. The relevant portion of this order has already been reproduced above in paragraph No. 3 which shows that the learned Judge had, in fact, passed a `consent order', providing the petitioner to pay the balance of the transfer price within the period and in the manner prescribed with the agree--ment of the parties. As such the earlier orders of the Settlement authorities (challenged before it) stood merged therein and from then onward the parties were to act in accordance with the agreement arrived at
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between them which was fully spelt out in the said consent order. There was, therefore, n question of the Additional Settlement Commissioner (Inds.) passing the order of resumption in pursuance of his order dated 9-6-1973. In view of the above circumstances we find no force in the first contention raised by the petitioner's learned counsel. 6. We now take up the second contention raised by the petitioner's counsel. Since Mst. Sultan Jehan Begum (petitioner) had already failed to pay the price for so many years and her transfer was already liable to be cancelled, the new opportunity given to her by Mr. Justice A. S. Salam to pay up the money should have been promptly availed by her, but although the depart--ment informed her, in reply to her query by her vide letter dated 28-4-19 r7, that the amount due from her was Rs. 22,04,360 and she was directed either to appear before the Settlement authorities personally or through authorized agent to get the accounts reconciled as directed by the High Court, yet un--fortunately she did not take any serious step towards payment of the balance price of the cinema and instead of honouring her undertaking before the High Court she chose to file another Writ Petition (No. 829-R-77), praying, inter alia, that the order dated 24-3- 1977, whereby the consent order was made should be suspended. This writ petition was heard by the same learned Judge of the High Court and was dismissed in limine on 17-6-1977, with the observa--petition that :- "The effort of the petitioner is clearly to postpone clearance of hey liability, voluntarily incurred 15 years ago ; wriggle out of the commit--ment (quoted above) made by her learned counsel in her previous petition and to nullify what was virtually a consent order by this Court previously. Constitutional jurisdiction can hardly be exercised so as to further the aforesaid designs of the petitioner." The learned Judge observed further that :- "The order (dated 24-3-1977 in Writ Petition No. 322-R-77) was clearly a consent order in this behalf. Not only the petitioner was liable to pay the entire dues but the learned counsel for the petitioner had also given an undertaking to do the needful according to the agreed arrange--ments. 1t appears that the petitioner is not discharging her liabilities and abiding by the undertaking. The consequences of default were mentioned in the aforesaid two orders of the Settlement authorities and were accepted by the petitioner in the undertaking given by her learned counsel in the previous writ petition." The petitioner did not challenge this order any further but, instead, challenged the aforementioned consent order dated 24-3-1977, through C. P S. L. A. No. 335/77, before this Court. The petition was, however, dismissed on 15-2-1978 by a Bench of three Judgewhich upheld the afore--mentioned order of the High Court, observing that "stand taken by the department was correct ; that the learned Single Judge of the High Court had given the relief to the petitioner ; that substantial justice had been done and that, therefore, the order of the High Court was unexceptionable.". As already mentioned above, while narrating the facts, during the hearing of this petition for Leave the department had made another liberal offer saying that although the period for payment of the transfer price, as prescribed in the consent order of the High Court, had expired it would not consider the matter foreclosed if the petitioner chose to pay Rs. 4 lacs in cash within a fortnight and settle the accounts with the department with regard to the balance within one month and, thereafter, pay the same in three equal instalments. While dismissing the aforementioned Civil Petition this Court did not pass any specific order with regard to this offer but before parting with the case only observed as follows:-- "However, as the period has expired before the disposal of this petition, the learned counsel for the caveator/respondents has given an offer . .. . . .This offer in our view, is reasonable and it will be for the petitioner to avail it if she is so advised." But, unfortunately, the petitioner did not avail even this offer and instead, filed a Civil Review Petition (No. 10-R-79) before this Court against the refusal of grant of leave in C. P. S. L. A. No. 336/77. But the
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Review Petition was dismissed in limine on 6-2-1980. A reading of the grounds of the Review Petition as well as the orders passed by the learned Bench thereon, shows that it was dismissed (on 6-2- 1980) as having been filed mala fide, with a view to withhold the payment of transfer price on the pretext of the matter being sub judice before this Court. As a matter of fact, one of the prayers in the Review Petition was that the offer given by the department should be given effect to from the date of the decision of the Review Petition and not from 15-8-1978 when the C. P. S. L. A. No. 336/77 was dismissed. But it did not find favour with the learned Bench hearing the Review Petition, while dismis--sing it observed that:- "We do not agree with this further contention as the offer was made in Court before the dismissal…
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