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Petitioner: M/s. Beach Luxury Hotels, Karachi VS Respondent: M/s. Anas Muneer Ltd., etc.
Court Name: Supreme Court of Pakistan Judge(s): Mian Saqib Nisar, Iqbal Hameed-ur-Rehman, Maqbool Baqar Title: M/s. Beach Luxury Hotels, Karachi vs M/s. Anas Muneer Ltd., etc. Case No.: Civil Appeal No. 1137 of 2008 Date of Judgment:2015-12-16 Reported As: 2016 P.S.C. 207 Result: Civil appeal allowed
JUDGMENT
JUDGMENT MIAN SAQIB NISAR, J.This is an appeal file against the judgment delivered by a division bench of the Lahore High Court in ICA 169 of 1968 in terms whereof the judgment delivered by a learned Single Judge of the High Court was set aside and the case was decided in favour of the "present Respondent. CPLA No. 665 of 2006 was filed against the said judgment. The Respondent appeared before this Court and unsuccessfully opposed the grant of leave t appeal, inter alia, on the ground that an appeal lay as of rig t in the present case and hence leave to appeal should not b granted. It was however, contended on behalf of the Appellant that the value at which the disputed property was transferred showed the transfer price as being Rs. 44,790.P which is below Rs. 50,000 and on the basis thereof his objection was over ruled. A review petition has been file against the said order. However, it is not necessary to examine the question as to whether the transfer price was below Rs. 50,000 or not since this Court has already granted a moratorium in relation to such petitions. 2. On the merits, the main objection raised on behalf of the Respondent before us was that the order of the Chief Settlement commissioner in terms whereof the matt r was re-opened disregarded the fact that prior there Ordinance No. II of 1962 had come into force with effect from 13.1.1962 and in terms thereof the provision of sub section (2) and (4) of Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 stood omitted. It was accordingly argued that the Settlement Department did not have the jurisdiction to re-open the case. 3. The essential facts of the case may now be considered. The property known as Nedous Hotel was transferred by means of a public auction. The auction notice states that the evacuee property known as Nedous Hotel would be sold on 21.08.1961. The auction was to be conducted by the Additional Settlement Commissioner, Lahore and presided over by the Settlement Commissioner
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(in dispute). The highest bid was tendered by Mr. Avari (hereinafter referred to as the Appellant) in the sum of Rs. 1,21,00,000/- and in consequence thereof a Permanent Transfer Certificate was duly issued to him in which the area of the property was specified as being 96 kanals, one marla and 12 sq. feet. The boundaries were also specified as being on the north , PIA plot, WPIDC plot, Transport House and CSC Office and in the south Upper Mall, on the east Al-Hamra Arts Council and on the west WAPDA House. The Appellant's bid of Rs. 1,21,00,000 had earlier been accepted by the Chief Settlement Commissioner on 7.9.1961. Although the permanent transfer certificate was issued on 6.10.1964 much prior thereto on 9.1.1962 the Appellant submitted a written application. By means of this letter it was submitted that at the time the possession of Nedous Hotel was given to him it was brought to the notice of the officer delivering possession that an area measuring approximately 530 sq. yards, or about 11/2 kanal, belonging to Nedous Hotel and lying between the Mall and the northwestern wing of the Hotel, had been enclosed by a wall and it was occupied by a service station. It was stated that at that time an assurance was given that the said area occupied by the service station would be recovered and possession handed over to him. It was further stated that the matter was also brought to the notice of the Settlement Commissioner to whom the letter was addressed and he repeated the same assurance. It was requested therefore that the appropriate action should be taken. Reliance was placed by the Appellant on a further letter as well dated 11th April which was addressed to the Chief Secretary, Government of the West Pakistan. This complained that his earlier letter had not evinced any response either from the Chief Settlement Commissioner or any other functionaries. The request was repeated that the said land should be handed over to him so that the to area of 96 kanals one marla and 12 sq. feet would be handed over to him. The Hotel was opened on 12th February 1962 as a going concern. Since the Government wanted the Hotel to start functioning urgently because of the shortage of accommodation the request was therefore made that the Chief Settlement Commissioner should hand over the area in question after an actual measurement and by removing the encroachment by M/s. Shahnawaz Limited, the occupant (i.e. Anas Muneer Limited, the Respondent) as soon as possible. 4. By means of a letter dated 29.1.1962 which was sent by the Settlement Commissioner to the Additional Settlement Commissioner the matter was re-opened. This letter is important and is reproduced below:--- "OFFICE OF THE CHIEF SETTLEMENT & REHABILITATION COMMISSIONER PAKISTAN 11-Egorton Road, Lahore No. 106-F&M-Reh/62Dated 29.1.1962 From Settlement Commissioner (Industries) Lahore. To Addl. Settlement Commissioner, Lahore. Sub:- Disposal of the big mansions & hotels Property Nos. S-19-R-85 known as Nedous Hotel, Upper Mall, Lahore. Two units bearing Nos. S-10-R-85A (Khasra No. 1048) and S-19-R- 85A (2) Khasra No. 1047 have been transferred to M/s. Shahnawaz Serving Station Ltd., The Mall, Lahore against one NS from. Only one unit could be transferred to then. The Unit No. S-19-R-85A(2) Khasra No. 1047 is a part of the Nedous Hotel which has since been auctioned. The transfer of this unit in favour of M/s. Shahnawaz Ltd. is illegal and calls for immediate cancellation. 2. The Chief Settlement Commissioner, Pakistan has order that you may please re-examine the case and pass necessary or after hearing the parties under intimation to this office. 3. The relevant file of the Deputy Settlement Commissioner Lahore of this case containing pages 1
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to 45 also sent herewith. DEPUTY SETTLEMENT COMMISSIONER (1) for, Settlement Commissioner (Industries) Lahore. No. 106-F-F&M-Reh/62 Dated 1962 5. The foundation of the above letter is the clear cut legal position as set out in the Act in terms of which only one property could be transferred to a non-evacuee. The question, therefore, was whether the Respondent had obtained more than one property. If so, the transfer would be illegal and would lead to cancellation. 6. At this stage it would be appropriate to examine the title of the Respondent. The record indicates that the Respondent obtained a Provisional Transfer Order dated 8.1.1960. Apparently no permanent transfer order was ever issued to him. The Provisional Transfer Order issued by the Deputy Settlement Commissioner describes in the Schedule thereto the properties being transferred, as being not one but two properties. The said Schedule states that property No. S.E 19- R-85A and 85A(2), The Mall Lahore was being transferred. Subsequently the Respondent got the property numbers changed by the Deputy Settlement Commissioner to read as SE.19.R.85/A and SE.19.R.85/A(ii) instead. 7. The record indicates that not merely were these two different properties but in fact even the owners were different. Prior to getting to the said properties allotted it appears that the Respondent was occupying the same in his capacity as a tenant. In this connection, it is necessary to refer to a letter dated 13.11.1956 (i.e. much before the transfer of Ownership to the Respondent) which was issued by the Settlement Department to the Respondent which is important and relevant. The said letter is reproduced herein below:--- No. DRC/ACS/RA/5961 Dated 13.11.1956 From M.S. Zaman Esq. M.A. (Alig) Deputy Rehabilitation Commissioner, (Rent and Repairs) Lahore. To The Shahnawaz Servicing Station Ltd. 1, Charing Cross, The Mall, Lahore. Sub: Recovery of Rent of property No. SE-19-R/85 A, Lahore. 1. Reference your letter dated 6-11-1958 on the subject noted above. 2. There are two different properties i.e. SE-19-R-85(A) and SE-19-R- 85 (E) belonging to two different owners named, K.S. Sathi and R.B.L. Jodhe Mal respectively. The rent of the properties has also been fixed separately @ Rs. 10/- P.M. and Rs. 83/5/- P.M. Gross. You are therefore requested to please pay the rent of the aforesaid properties separately. 3. All the amounts paid by you have been shown on the reverse of the rent bills which are enclosed herewith. Sd. M.S. Zaman Deputy Rehabilitation Commissioner, (Rent and Repairs) Lahore. End: Two Rent Bills. No. DRC/ACS/RADated Nov., 1956 Copy to: The Rehabilitation Officer, Civil Lines, Lahore, for information. Deputy Rehabilitation Commissioner, (Rent and Repairs) Lahore. The letter speaks for itself and leaves no doubt in the matter that these were two different properties belonging to two different owners and in relation to which rent was being separately paid to the Settlement Department by the Respondent. However, to proceed with the narration of
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events thereafter the matter was taken up by the Additional Settlement Commissioner who passed a detailed order dated 9.11.1965. 8. The properties which were transferred to the Respondent consist of a petrol pump located on Khasra No. 1048 and measuring 13 Marlas. The other property consists of a service station measuring 11/2 kanal located on Khasra No. 1047 and it is the case of Appellant that this was an integral part of Nedous Hotel which is located on the said Khasra. The Additional Settlement Commissioner directed that necessary enquiries should be made with the assistance with Mr. Agha Ali Hussain, Land Acquisition and Control Officer, in relation to the questions involved of title and possession. He reported that the Appellant had been handed over possession in full except the segment in the possession of Shahnawaz Service Station i.e. on Khasra 1047. On behalf of the Appellant it was contended before him that, being an integral part of Khasra No. 1047. the Respondent was not entitled to claim the said plot of 11/2 kanal and, in any event, there was no question of his being entitled to two properties on the basis of one Application Form alone. 9. In reply various defences were raised by the Respondent. According to him the land bore one number while the construction thereon bore another number. In relation to the ownership question the Respondent produced copies of the tax assessments by the Municipal Corporation which showed property bearing No. 85/A(i) to be owned by one Mr. Sobti which was assessed at Rs. 108 and the other property namely, 85/A(ii) was owned by M/s. R.B. Ram Saran Dass and R.B. Jodha Mall Kuthalia which was assessed at Rs. 720. It appears to us that this argument does not advance the cause of the Respondent in any manner whatsoever but on the contrary demolishes it completely. Insofar as the entitlement of the Appellant is concerned, he contended that the Settlement Patwari had submitted a report dated 5.6.1963 according to which the Appellant was in possession of 96 kanals 17 marlas and hence was not entitled to any further land. We will examine this report, which is important, closely in a later part of this judgment. 10.The Additional Settlement Commissioner after hearing both parties came to the conclusion that there had been a multiple transfer of the same property in favour of both Shahnawaz Service Limited (the Respondent) as well as Mr. D.B. Avari (the Appellant). He however, wanted to satisfy himself further as to Mr. Avari's entitlement and directed that a fresh examination of the same should be carried out by a team of five expert officials. He incorporated their findings in his order and we will further consider this at a later stage in this judgment. It will suffice to observe at this time that the report was in Mr. Avari's favour. He then discussed the reliance by the Respondent on the earlier report of the Settlement Patwari and held that an examination of the said Patwari's report did not render any assistance to the Respondent since the report was vague. In the circumstances the matter was decided in favour of the Appellant and the transfer in favour of the Respondent was cancelled. 11.Against this order an appeal was filed before the Settlement Commissioner which was dismissed by mear.s of an order dated 25.3.1968. This also concluded that possession of Nedous Hotel which was delivered incited that the small area in the possession of the Respondent should also have been handed over at the same time to him. He concluded that the area in dispute was an integral part of Nedous Hotel and also that, in any event, the Respondent was not entitled to two properties by any stretch of the imagination. 12.After the Respondent had lost in both forums before the Settlement Department he approached the Lahore High Court by means of Writ Petition No. 423-R-68. The case came up before a learned Single Judge who passed an order dated 22.5.1968 in terms of which the Settlement Commissioner was directed to produce the complete .file of the allotment and disposal of the properties which he then proceeded to examine personally. On a perusal of the record he concluded that Property No. 85-A(i) was owned by Mr. Sobti while the portion designated 85-A(ii) was owned by Mr. Jodha Mall and that the property owned by Mr. Sobti had an area of 12 marlas
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whereas the property owned by Mr. Jodha Mall was a separate property with an area of 11/2 kanal. 13.It is material to note that it was conceded before him by the Respondent that the petrol pump was located on the property bearing No. 85-A(i) while the Service Station (i.e. the disputed plot) was situated on 85-A(ii) and that the latter was enclosed by a separate boundary wall. He then examined the record further and came to the conclusion that the Respondent, on his own showing, was not entitled to the property in question for an additional reason as well. This was that it was admitted that originally on the plot there was no pacca construction and the katcha construction had disintegrated and it was he who had subsequently constructed the pacca room. He concluded therefore that insofar as the property in dispute, which was owned by Mr. Jodha Mall was concerned, it could not be classified as a "shop" in terms of Section 2(12) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and hence could not be transferred thereunder to the Respondent. It was merely an evacuee plot of land. The petition was accordingly dismissed since the Respondent had failed to establish his entitlement to the plot in question. 14.The question of more than one shop or property being transferred to a person is covered by the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. If reference is made to para 9 of the said Schedule it will be seen that it provides as under:-- 9. A shop in possession of a non-claimant displaced person and which the non-claimant desires to retain, shall be transferred to him on payment of the prevailing market value: Provided that not more than one shop shall be transferred to any one non-claimant under this paragraph: Provided further that if there is more than one applicant for the transfer of the same shop, the shop shall be transferred to the non-claimant who obtained prior possession. It is therefore clear that in no circumstances whatsoever could the Respondent have had more than one property transferred to him. 15.We now turn to the judgment of the learned division bench of the High Court which has been impugned before us. By means of this the Respondent's appeal was accepted and the matter was decided in his favour. Before the learned division bench a new legal point was urged for the first time. Reliance was placed on Ordinance ll of 1962 which was issued on 13th of January, 1962 and in terms of which by means of Section 5 thereof, sub-sections (2) and (4)of Section 20 were omitted. Section 20, as unamended is reproduced hereinbelow:--- 20.Revision.---(1) The Central Government at any time may call for the record of any case or proceeding under this Act in which the Chief Settlement Commissioner or a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner has passed an order for the purpose of satisfying itself as to the correctness, legality and propriety of such order, and may pass such order in relating thereto as it thinks fit. (2)The Chief Settlement Commissioner at any time may, and shall on being directed by the Central Government, call for the record of any case or proceeding under this Act in which a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order, and may pass such order in relation thereto as he thinks fit. (3)A Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may at any time call for the record of any case or proceeding under this Act in which an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order, and may pass such order in relation thereto as the thinks fit.
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(4)An Additional Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may at any time call for the record of any case or proceeding under this Act in which a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order, and may pass such order in relation thereto as he think fit. (5)No order under this Section shall be passed revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard. In these circumstances it was submitted that the power to reopen the question of title had been taken away and hence the Settlement Department had no legal authority to interfere in the matter. 16.There is, however, an additional amendment which also took place. This was by means of Ordinance XIII of 1962, dated 17th of March, 1962. This amendment was effected with retrospective effect from 13th of January, 1962. Section 2 of the Ordinance provides that the following new Section shall be inserted, and shall be deemed to have been always so inserted, as Section 7:-- "7.Savings. For the removal of doubts it is here by declared that omission by this Ordinance of subsections (2) and (4) of Section 20 and sub-sections (1), (1A) and (2) of Section 21 of the said Act shall not affect any case or proceedings the record of which called for under sub-section (2) of Section 20 of the said Act, or any review proceeding under sub-section (1) of Section 21 thereof, which was pending immediately before the commencement of this Ordinance: Provided that no revision or review under any of the provisions omitted by this Ordinance shall lie against any order made in any such case or proceedings." 17. It will be recollected that, as narrated hereinabove, on 9th January, 1962 the Appellant had sought to have the matter re-opened. This was before the critical date namely 13th January, 1962. But this fact is not sufficient to enable the Appellant to take advantage of the amendment. The further question which arises is at what point of time did the Settlement authorities actually take cognizance of the matter and decide to re-open the same. In relation to this the record is silent. All that we have on the record is a letter dated 29.1.1962 sent to the Additional Settlement Commissioner in terms of which it is stated that the Chief Settlement Commissioner has ordered that he should re-examine the case and pass the necessary orders after hearing the parties under intimation to this office. Thus it is manifest that the Chief Settlement Commissioner had passed an order prior to the said date. This order was obviously passed at some point of time between 9th January, 1962 and 29th January, 1962. However, this earlier order is not part the of record before us. In these circumstances, since it was the duty of the Respondent, which was seeking to rely on this for the first time, and that too at a belated stage, who should have made an endeavour to have the entire record brought before the Court. Since he failed to do there is no factual foundation on which we can proceed to decide the point in the Respondent's favour Accordingly this finding of the learned division bench falls to the ground. 18.It is necessary to point out, however, that over and above the above aspect of the matter, there is an additional fact of the utmost importance. As pointed out earlier the Respondent only had a Provisional Transfer Order in his favour. This Provisional Order contains the following clause (vi) which is pertinent and is reproduced below:--- "(vi) The President shall be entitled to resume the whole or any part of the said property if the Central Government or any officer authorized by the Central Government in this behalf is at any time satisfied and records a decision in writing to that effect that the transfer of the said property or any other compensation in any form whatsoever under the aforesaid Act has been obtained by fraud, false representation or concealment of any material fact on the part of the transferee or his predecessor-in -interest." It can be seen that this is an independent power conferred on the Settlement Authorities, quite apart from the statutory power of revision. The Respondent only had a provisional title and that
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also was subject to the above-mentioned condition. It necessarily follows that in case the Settlement Department found that he had made any false representation, or concealment of a material fact, or fraud, it would be entitled to resume the property. 19.Further support to the above is provided by a plethora of case-law including numerous judgments of this Court which state that in case of fraud or misrepresentation an inherent power vests in the Settlement Authorities to recall the impugned order. Indeed the learned division bench had itself recognized the existence of this power and specifically held that even independently of the power of revision this was an inherent power of the Settlement Department. The relevant passage of the judgment of the learned division bench is reproduced below:-- "The only ground and basis of reopening of the matter has been where the transfer had been procured and was result of fraud and misrepresentation. That is the import of the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazal Khan and others (PLD 1975 SC 331). In the instant case however there is not even any allegation or fraud or misrepresentation addressed to the Appellant (i.e. the Respondent herein) in seeking the transfer of the property not to say of any material." 20.We confess that we have read the above finding with great surprise. In fact, right from the beginning the only contention before the Settlement Authorities was the misrepresentation, or fraud, on the basis of which the Respondent had claimed two properties instead of one. There was no other matter before the Court. The learned division bench has correctly stated the applicable principle of law but thereafter has committed an error which is manifest on the face of the record. In these circumstances this finding can also not be upheld. 21.At this point of time it is necessary to deal with one additional point which has been raised before us on behalf of the Respondent. We noticed that the Respondent's counsel it difficult to justify the judgment of the learned division bench on the merits. Indeed, insofar as the judgment of the learned single bench of the High Court is concerned, he did not advance any proposition whatsoever to impugn its validity. He, however, adopted another stance, namely, to call in question the title of the Appellant. The main thrust of his submission was that the Appellant was only entitled to an area of 80 kanals and not 96 kanals, one marla, 12 sq. feet. This contention was based by him on a map which is on the record as well as two additional documents filed by him. While we are going to examine his submission in some depth in what follows it is however necessary to clarify one point right at the inception. 22.The only question before the Settlement Authorities related to the title of the Respondent to the plot bearing No. 85/A(ii)…
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