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Petitioner: AKHTAR IQBAL PORI VS Respondent: CHIEF SETTLEMENT COMMISSIONER AND 8 OTHERSs
Court Name: Lahore High Court Judge(s): Muhammad Siddiq Title: AKHTAR IQBAL PORI vs CHIEF SETTLEMENT COMMISSIONER AND 8 OTHERSs Case No.: Writ Petition No, 181/R of 1967 and C. M. No, 1 of 1974 W. P. No, 591/R of 1966 Date of Judgment:1976-08-15 Reported As: PLD 1977 Lahore 249 Result: Petition dismissed
JUDGMENT
JUDGMENT ' The dispute in this case relates to evacuee property No, S. E. 14. R.-32, Empress Road, Lahore, which is a huge property consisting of several units. Muhammad Sharif Puri (petition in W. P. No, 512/R of 1969) who is a local, claims to have purchased on 12-4-1948 machinery of cold storage and ice factory, which was in a dilapidated condition, from the Director of Industries for Rs, 10,300. According to this petitioner, by order dated 5-9-1952 (Annex. 'A' in W. P. No, 512/R of 1969) the Deputy Rehabilitation Commissioner, Lahore, allotted the cold storage consisting of one small machinery room, one water tank, one large room, one small room, one tube-well room, cold storage underground with compound measuring North 80', 'South 12/, West 80' and East 100'. There is also mention of "including portion of Kothi and cold storage." It seems that sub-sequently the Rehabilitation Commissioner vide order dated 11.7-1956 asked Muhammad Sharif Puri to vacate the premises. This order was challenged in revision before the Custodian (Mr. Justice A. M. Jan) who vide judgment dated 26-1-1957 accepted the same (PLD 1957 Custodian 12). At the commencement of the settlement operations the Chief Settlement Commissioner after inspecting the spot decided that this evacuee property S. E. 14/R/ 32, Empress Road, Lahore, should not be treated as big mansion, but be disposed of under Settlement Scheme No, 1 (Annex. 'A' in W. P. No, 181/R of 1967). Accordingly, the Inspector after spot inspection made a detailed report dated 7- 5-1960 regarding the disposal of this property and the Deputy Settlement Commissioner vide order dated 9-5-1960 (Annex. 'B' in W. P. No, 181/R of 1967) agreeing with the said report ordered the transfer of various portions in favour of Ross Masood Claimant, Kanwar Khurshid Ali Khan Claimant, A. H. Anwari claimant and Ahmadyar Khan claimant who were also in possession of their respective portions. However, the forms of Abdul Hamid Khan, Mst. Feroza Salim, Muhammad Ibrahim and
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Muhammad Akbar were rejected. Against this order of the Deputy Settlement Commissioner, eight separate appeals were filed by Kanwar Khurshid Ali Khan, Abdul Harald Khan, Ahmadyar Khan, Mst. Feroza Salim, Akhtar lqbal Puri (petitioner), Ross Masood, Abdul Razzak and Muhammad Sharif Puri (petitioner). These appeals were first heard by Malik Ghulam Jilani, Additional Settlement Commissioner (Judicial) Lahore-I, on 5-12-1960 (Annex. 'J' in W. P. No, 18I/R of 1967) and then finally disposed of by order dated 19-12-1960 (Annex. 'K' in W. P. No, 181/R of 1967). The Additional Settlement Commissioner transferred portion 'A' in favour of Akhtar Iqbal Puri, portion 'B' to Ross Masood, portion 'C' to Ahmadyar Khan, portion 'D' to K.Anwar Khurshid All Khan, portion `E' to Muhammad Sharif Puri, portion 'F' to Abdul Hamid Khan, portion 'G' to Mrs. Feroza Salim and portion 'H' to A. H. Anwari. The above orders of the Additional Settlement Commissioner were challenged by filing eleven separate revision petitions before the Settlement Commissioner who vide the impugned order dated 9-11-1966 (Annex. 'P' in W P. No, 181/R of 1967) disposed of all the revision petitions. Akhtar Iqbal Puri petitioner challenged the impugned order through W. P. No, 181/R of 1967 filed on 22-2-1967 and the same was admitted to regular hearing on 9-3-1967. Muhammad Sharif Puri petitioner filed separate W. P. No, 512/R of 1969 on 22.5-1969 and was admitted to regular hearing on 28-5-1969 subject to the objection of limitation and ladies to be raised at the time of final disposal. Since both these writ petitions relate to the same property and arise out of the same impugned order, they are being disposed of by this judgment, 2. First I take up W. P. No, 512/R of 1969. As indicated above, against the impugned order dated 9-11- 1966 the present writ petition was filed before this Court on 22-5-1969 and was admitted to regular hearing on 28-5-1969, subject to the objection regarding limitation and laches to be raised at the time of final disposal. The contesting respondents, therefore, have raised a preliminary objection that this writ petition is liable to be dismissed on the ground of delay and laches. Admittedly, there is a delay of more than two and a half years in filing this writ petition. The only explanation offered by the petitioner is the note dated 22-5-1969 given at the end of the petition by his counsel which is reproduced below I-- "The petition was after completion mixed up with some papers in the newly acquired office at 33- The Mall Mansion, Lahore. Despite hectic search everywhere it was not forthcoming. It is only two days back that my previous neighbour and landlord while adjusting his own office came across this petition and was good enough to make it available to the counsel. The previous clerk had to be removed from service on this score. The Settlement record is also lying in this Honourable Court in the connected W. P." ' I have minutely gone through this explanation and given my anxious thought to it, but find myself unable to accept the same. According to this note, the petition after its completion on 2i-9-1907 was mixed up with some other papers in the newly acquired office of the counsel at 33-The Mall Mansion, Lahore. This petition remained lost or untraced from 21-9-1967 till two days before 22-5- 1969 i,e, till 20-5-1969. It means it remained untraced for one year and eight months from the date of its drafting. If the explanation offered had been true, then the reaction or conduct of the counsel as well as of his client should have been different. The counsel could not remain silent for such a long time after accepting the brief. He could easily redraft a fresh petition and file the same after a week or so. It may also be observed that this petition was already late as the impugned order was passed on 9-11-1966 and the connected Writ Petition No, 181/R of 1967 was filed by the son of Muhammad Sharif Puri on 22-2-1967. It may further he noted that the counsel in both these writ petitions is the same. Further, no certified copies of the annexures etc. Are attached with the present writ petition. Only uncertified copies of the annexures have been filed. These annexures have been attested by the counsel only. Only one document, namely, grounds of appeal before the Additional Settlement Commissioner (Annex. `B') is a certified copy. Thus, there could be no difficulty for the learned counsel to redraft and tile a fresh petition if the original writ petition was
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not traceable. The non-judicial stamp of Rs, 100 could also be purchased afresh. No responsible counsel could remain inactive for such a long time and wait till the old draft was traced out. Further, I find that even the name of the clerk who is said to be responsible for mixing up the papers, has not been disclosed. Similarly the name and particulars of the previous neighbour and landlord of the counsel are not given. The conduct of the petitioner is also not satisfactory in this regard. Like an ordinary client he should have enquired from his counsel whether his writ petition had been filed and if so, with what result. Silence on his part for such a long time casts serious doubt about the bona fides of the claim of the petitioner that the drafted writ petition was really mixed up or misplaced in the office of the counsel. On the other band, it is vehemently argued by the learned counsel for respondent No, 5 that this petition was deliberately kept pending for an ulterior motive. Muhammad Sharif Puri petitioner bad also applied for transfer of another property known as Mayfair Hotel, Murree. First he tried to get this property transferred in his favour under Paragraph 20 of Settlement Scheme No, 1, but ultimately he failed and his Writ Petition No, 795/R of 1961 was dismissed by a Division Bench of this Court consisting of Mushtaq Hussain and Ataullah Sajjad, IL On 27-3-1968, since during the intervening period Settlement Scheme No, VIII came into force in 1966, Muhammad Sharif Puri petitioner apart from pursuing his case in the High Court under Paragraph 20 of Settlement Scheme No, 1, also filed LH form No, 203/MRE under Settlement Scheme No, VIII on 20-10-1966 for the transfer of the same property, namely. Mayfair Hotel Murree. This form was rejected by the Deputy Settlement Commissioner on 18-6-1968. He filed an appeal before the Additional Settlement Commissioner, Rawalpindi, who by his order dated 19-8-1968 remanded the case to the Deputy Settlement Commissioner, Murree, to decide it afresh on merits. Accordingly, the Deputy Settlement Commissioner, Murree, vide order dated 22-4-1969 transferred Mayfair Hotel Murree in favour of Muhammad Sharif Puri petitioner under Settlement Scheme No, VIII. According to the respondent it was after securing the transfer of Mayfair Hotel, Murree in his favour against his LH form that Muhammad Sharif Puri petitioner thought of filing the present writ petition in order to get another property at Lahore as an industrial concern. After taking into consideration the relevant material and hearing the counsel for the parties, I am clearly of the view that the explanation offered by the counsel for this inordinate delay is neither satisfactory nor convincing and no sufficient cause has been shown for the same. There is no explanation whatever for earlier delay from 9-11-1966, the date of the impugned order, till 21-9-1967, the date of the drafting of the writ petition. It may be noted here that the same counsel had already filed writ petition on behalf of Akhtar lqbal Puri son of Muhammad Sharif Puri petitioner on 22-2-1967 and the same was admitted to regular hearing on 9-3-1967 when the operation of the impugned order was also suspended. Thus, the delay first from 941-1966 to 21-9-1967 and then from 21-9-19t7 to 22-5- 1969 remains unexplained and consequently this writ petition suffers from inordinate delay and laches. On the other hand, I feel that the petitioner deliberately did not file this' writ petition earlier as he was pursuing his case regarding Mayfair Hotel, Murree before different authorities and it was only after its transfer on 22-4-1969 that he thought of filing the present writ petition before this Court. Since this writ petition was admitted subject to the objection of limitation and laches to be raised at the time of final disposal, the same is therefore, liable to be dismissed on this ground alone. 3. Even on merits, Muhammad Sharif Puri petitioner has got no case. It is an admitted fact that he did not file any LH or other form for the transfer of any portion of this property in his favour. Since against his LH form he has already secured another property at Murree (Mayfair Hotel) he cannot claim the transfer of any other house or residential unit under the law. Malik Ghulam Jilani, Additional Settlement Commissioner, had transferred portion `E' to him on the ground that he had spent about Rs, 40,000 to instal Ice and Cold Storage factory and the machinery was purchased by him from the Rehabilitation Department which was transferred in his favour by the Secretary.
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Rehabilitation Board. As regards the existence of Ice and Cold Storage Factory, it is vehemently and categorically denied by all other occupants of this property. According to them, no such factory was in existence at the relevant time when the Settlement operations started and this portion 'E' was transferred in his favour by the Additional Settlement Commissioner. Apart from this, there is another serious hurdle in the way of Muhammad Sharif Puri petitioner. As mentioned above, the Chief Settlement Commissioner vide Memorandum No, 637-F & M. Reh. E0, dated 15-4-1960, (Annex. 'k' in W. P. No, 181/R of 1967) endorsed to the Deputy Settlement Commissioner, Centre I, Lahore, after personally inspecting the spot, had decided that evacuee property No, S. E. 14. R. 32, Empress Road, Lahore, should not be treated as big mansion, but be disposed of under Settlement Scheme No, 1. It was after. This Memorandum that the question of transfer of this property was taken up by the subordinate Settlement authorities. If there had been any industrial concern of any kind in existence on the spot at the time when the Chief ,Settlement Commissioner inspected this property, he should have noted the same and consequently could not order the transfer of the same under Settlement Scheme No, 1. It is not denied that Ice and Cold Storage factory could not be transferred under Settlement Scheme No, 1. For the transfer of such an industrial concern, he should have issued separate directions. It is not denied that nobody felt aggrieved with the above-mentioned Memorandum of the Chief Settlement Commissioner, as neither the petitioner nor anybody else made any representation to him in this behalf, nor was it otherwise challenged before any competent authority. If the contention of Muhammad Sharif Puri petitioner or his son Akhtar Iqbal Puri petitioner be accepted that they were running some industrial concerns at that time, then the proper course for them was to approach the Chief Settlement Commissioner either to withdraw that Memorandum or modify it to the extent that it could not cover their respective industrial concerns. It is not denied that no such representation was ever made to the Chief Settlement Commissioner in this behalf, nor otherwise the said Memorandum was challenged before any competent authority. Thus, the conduct of both the petitioners in this behalf goes against them. It is surprising how Malik Ghulam Jilani, Additional Settlement Commissioner, could flout such clear-cut direction of his superior, the Chief Settlement Commissioner, by transferring a portion of the property as industrial concerns. If he had found Ice and Cold Storage factory in existence at the relevant time, he should have referred the case to the Chief Settlement Commissioner for necessary Instructions. It may be observed here that the Rehabilitation Inspector who submitted hi report after spot inspection on 7- 5-1960 has not at all mentioned the existence of any industrial concern in the property in dispute. He has, however, mentioned that the major portion of the main bungalow was in occupation of Muhammad Sharif Puri, a local who had tiled no LH form. It shows that the Inspector was conscious of the possession of this petitioner and if he or his son had been running any industrial concern, the Inspector should have noted and mentioned the same in his report. Even Malik Ghulam Jilani. Additional Settlement Commissioner, in his order dated 19-12.1960 while transferring portion 'E' to Muhammad Sharif Puri has not specifically mentioned the existence of any Ice or Cold Storage fact, ry. He has only mentioned that Sharif Puri had sent about Rs, 40,000 to instal Ice and only Storage Factory and the machinery was purchased by him rom the Rehabilitation Department which was transferred in his favour by the Secretary, Rehabilitation Board. According to the counsel for the contesting respondents what was purchased by Muhammad Shard Puri petitioner was a mere junk which he disposed of subsequently at con siderable profit. According to him, if this petitioner was still running the alleged Ice and Cold Storage Factory at the relevant time, he should have applied for the transfer of the same when the settlement operations for transfer of such industrial concerns started. There is nothing on the record to show that Muhammad Sharif Puri had ever applied for the transfer of such industrial concerns in any manner. As indicated above, the Inspector in his report dated 7-5-1960 did not recommend the transfer of either any residential unit
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or Industrial concern in favour of Muhammad Sharif Puri and consequently nothing was transferred in his favour by the Deputy Settlement _Commissioner, The learned counsel for this petitioner has pot been able to point out any form or even application on the file submitted by Muhammad Sharif Puri petitioner for the transfer of any industrial concern or even a residential unit. The whole of the settlement record is available before this Court. It is not denied that if at the relevant time the Ice and Cold Storage factory bad been in existence and in running condition, this petitioner would have submitted form or some application for the transfer, of the same. Complete silence on his part not to apply for the transfer of such industrial concern goes a long way against the petitioner. It may be observed that if his case was covered by sub-paragraph (3) of paragraph 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it was necessary for him to apply for the transfer of the same. Further, if there had been such Ice and Cold Storage Factory in existence, it should have been included in the list of such factories in the relevant register of the Department concerned and should have been disposed of as such. The existence of Ice and Cold Storage factory could not escape the notice of the relevant authorities, especially situated on a main road in a city like Lahore. It is not denied that there is a regular procedure for the disposal of such industrial concerns. If this alleged Cold Storage and Ice Factory had been in existence, it should have been included in the relevant record of the Department. The fact that the Department has never claimed the existence of this Cold Storage and Ice Factory clearly belies the claim of Muhammad Sharif Puri petitioner. In fact, under the garb of industrial concern, he wants to grab the residential portion of this property which he otherwise is clearly debarred under the law. Another relevant material in this behalf is the judgment of the Custodian dated 26-1-1957 reported as PLD 1957 Custodian 12 on the revision tiled by Muhammad Sharif Puri petitioner against the Rehabilitation Authority. As indicated above, the Rehabilitation Commissioner had passed an order against Muhammad Sharif Puri on 11-7-1956 for his ejectment from the premises. I have carefully gone through this judgment. There is no mention whatever about any Ice and Cold Storage Factory in this judgment. It seems that this petitioner at that time was only fighting for the retention of the residential premises. It is nobody's case that Muhammad Sharif Puri was claiming two units-one as industrial concern and the other as residential unit. It there had been any industrial concern in existence and under the control of the petitioner, there should have been some mention of it in the judgment of the learned Custodian dated 26-1-1957, because some residential accommodation would be necessary to run such a concern. From a perusal of the judgment of the Custodian it is clear that at that time Muhammad Sharif Puri was fighting only for the residential accommodation and, therefore, there could be no Ice and Cold Storage Factory in existence at that time, otherwise it would have been mentioned in that judgment and the petitioner would have used the same in support of his claim. Another circumstance which belies the claim of Muhammad Sharif Puri is that in his grounds of appeal dated 18-11-1968 (Annex. 'B') filed before the Additional Settlement Commissioner it is mentioned in ground No, (6) as under "The industrial concern is being run under the name and style of 'Iqbal Sons Ltd' and is also registered under the Factories Act, of 1934. Therefore, this being as such ............................... ' Respondent No, 5 has placed on record a photostat copy of Memorandum No, F/LHR/841, dated 7- 2-1974 from the Zonal Director Labour Welfare, Lahore Region, Lahore, which reads as under "This is to inform you that no evaouee industrial concern run under the name of Iqbal Sons Ltd., as a factory registered under the Factories Act, 1934 had ever existed at 32 Empress Road, Lahore." ' The petitioner has not been able to place any material on the record either to substantiate his own assertion or to rebut the above-mentioned Memorandum issued by the Zonal Director, Labour Welfare, Lahore Region, Lahore. After taking into consideration the relevant material available on the record and hearing the counsel for the parties, it can safely be held that at the time of spot inspection by the Chief Settlement Commissioner in 1960, there was no Ice and Cold Storage
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Factory or any other industrial concern in existence on the premises of 32 Empress Road, Lahore. I am further of the view that Muhammad Sharif Puri petitioner did not submit any form or even an application for the transfer of the alleged Ice and Cold Storage Factory and, therefore, cannot have any grievance against the impugned order passed by the Settlement Commissioner. Thus, his W. P. No, 512/R of 1969 is liable to be dismissed on merits as well. 4. Now I take up W. P. No, 181/R of 1967 filed by Akhtar Iqbal Puri petitioner son of Muhammad Sharif Puri petitioner. He alleges to have filed LH form No, 161 on 17-11-1959. It is an admitted fact that this form is not available on the Settlement file. The petitioner has only placed on record a copy of the receipt (Annex. 'G') showing that two copies of the application in form LH were received from Muhammad Akhtar Iqbal son of Munammad Sharif on 17-11-1959. According to the petitioner, this form has been misplaced by the office and he cannot be punished for the inefficiency and carelessness of the office. On the other hand, it is alleged by the contesting respondents that in fact no such form was submitted by the petitioner, but subsequently he manoeuvred to secure this receipt in collusion with some subordinate staff. On the basis of this LH form the petitioner was claiming the transfer of the portion of the annexe in which he had installed an industrial concern. However, subsequently this petitioner changed the entire complexion of his claim. He alleges to have submitted an application on 6-5-1960 (Annex. 'D') and claims the transfer of the property as converted property in accordance with the Press-note dated 3-5-1960. All the contesting respondents vehemently argue that this application dated 6-5-1960 is not a genuine one, but has been smuggled into the record after the decision of the Settlement Commissioner dated 9-11-1966 before filing the present writ petition. Reliance in this behalf is placed upon the following :- (a) This document is not mentioned in the report of the Rehabilitation Inspector dated 7-5-1960 and even in the order of the Deputy Settlement Commissioner dated 9-5-1960 (Annex. 'B'). (b) Even the grounds of appeal dated 27-7.1960 (Annex. '0') filed by Akhtar Iqbal Puri petitioner himself before the Additional Settlement Commissioner, are silent about this document. The petitioner has mentioned LH form but this document is not at all mentioned. (c) There is no mention of this document in the order of the Additional Settlement Commissioner dated 19-12-1960, although ho had transferred the portion to the petitioner on the basis of industrial concern. According to the respondents if this document had been in existence at that time, Malik Ghulam Mani, Additional Settlement Commissioner, could not possibly omit to mention this document as he had accepted the appeal of the petitioner and had transferred much more than the portion claimed by him in his appeal. The Additional Settlement Commissioner would have made this document the basis of his order so far as Akhtar Iqbal Puri was concerned, if this document had been on the file at that time. (d) Akhtar Iqbal Puri, had also filed a revision petition before the Settlement Commissioner but in grounds there is no mention of this application (Annex. 'D'). (e) While the case was pending before the Settlement Commissioner the parties had tiled their written arguments. Akhtar Iqbal Puri had also filed his written arguments and in those arguments there is no reference of this document. (f) The application of Abdul Razzak respondent dated 11-4-1967 submitted to the Additional Settlement Commissioner is with the following report of the Head Clerk dated 29-4-1967 endorsed by the Deputy Settlement Commissioner on 8-5-1957 :- "I have examined the file and have also been the pages from 119 to 125 carefully. Page 119 is an application addressed to D. S. C. Dated 6-5-1960, which bears no signature of any officers and official. Same is the position of an attested certificate of Mr. M. A. Iqbal dated 20-1-1953. Same is the file of linear plan of the Komi in question. The registered letter (envelope) also indicated the same position. All the four documents also not…
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