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Petitioner: SAEEDA BEGUM VS Respondent: SETTLEMENT COMMISSIONER, SARGODHA CAMP LYALLPUR
1988 S C M R 885
1988 S C M R 885
Present: Shafiur Rahman, Ali Hussain Qazilbash and Usman Ali Shah, JJ
Mst. SAEEDA BEGUM‑‑Appellant versus SETTLEMENT COMMISSIONER, SARGODHA CAMP LYALLPUR and 5 others‑‑Respondents
Civil Appeal No. 245 of 1982, decided on 23rd February, 1988.
(From the judgment of the Lahore High Court, dated 9‑4‑1980, passed in Writ Petition No.841‑R of 1971).
(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑
‑‑‑Sched. , para.1‑‑Constitution of Pakistan (1973), Art.185(3) Evacuee property, transfer of‑‑Leave to appeal granted to consider whether High Court was justified in interfering with the division of concerned evacuee property and transfer of its portion in possession of appellant's predecessor to him and also to consider the question whether issuance of P. T. D. to respondents could at all be a bar to transfer impugned in High Court.
(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑
‑‑‑S.10, Sched. , para. 1‑-Transfer of evacuee property‑: Rights of claimant displaced persons in prior possession‑‑Issuance of P.T:D.‑ Effect ‑ of‑‑Claimant displaced persons in possession‑‑Disposal of property between parties in violation of mandatory provisions of para. 1 of Schedule to Act (XXVIII of 1958)‑‑Appellant, a claimant displaced person, despite being in prier possession, deprived of the portion in his possession for which proper form was submitted by him‑‑Order impugned‑‑ Respondents' plea that transfer in their favour had attained finality and since P.T.D. had been issued, their case could not be re‑opened, repelled‑‑Transfer, order relied upon had been challenged in appeals‑‑As no final order as per P.T.D. Rules was passed in favour of respondents in respect of their entitlement, no P. T. D could be issued to them‑‑Held: Even if P.T.D. had been issued in the name of respondents, it‑could not stand in the way of appellant because same was based on order which was void ab initio.
Mst. Hussan Jan v. Abdul Rahman and another 1976 S C M R 119 rel.
Jariullah Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑6n‑Record for Appellant.
Shahid Hussain Qadri, Advocate Supreme Court and Ch. Manzoor Illahi,
Advocate‑on‑Record for Respondents Nos.3 to 6.
Date of hearing: 23rd February, 1988.
JUDGMENT
ALI HUSSAIN QAZILBASH, J.‑‑ This is an appeal by leave from the order of a learned Single Judge of the Lahore High Court, dated 9‑4‑1980, whereby the writ petition filed by Sh. Abdur Rehman and others against the order of the Settlement Commissioner, dated 11‑1‑1974, was accepted.
2. The case pertains to the transfer of a portion of a composite property bearing No.P‑207, Ward No.6, Faisalabad, comprising shops and residential premises. For the purpose of this appeal, suffice it to say that the predecessor‑in‑interest of the appellant (hereinafter called the appellant) as well as the predecessor‑in‑interest of the respondents 2 to 6 (hereinafter called the respondents) were claimant displaced persons from Jammu and Kashmir. The appellant came in possession as an allottee of a residential portion comprising two rooms and a kitchen on the ground floor of the said property on 8‑3‑1949. The respondents were allottee‑occupants of the remaining residential portion consisting of 14 rooms from 28‑11‑1955. Both the parties applied on KCH forms for the transfer of the portions in their respective possession. Though under the law orders should have accordingly been passed but in the case of the appellant it was not done so. He was transferred the portion in occupation of the two locals, namely, Latif and Bashir, and the portion in possession of the appellant, i.e., the two rooms and a kitchen, was added to the portion in possession of the respondents and transferred to them. Thereafter, a protracted litigation between the occupants of various portions on the one hand and the present parties on the other ensued and a number of orders were passed. During the proceedings P. T. Ds. were also issued to the appellant and the respondents. It was on 3‑6‑1971 when on the appeal filed by the appellant against the respondents the Additional Settlement Commissioner, Sargodha, transferred the two rooms and a kitchen situate on the ground floor of the building which was in possession of the appellant, to him by holding:
"Similar is the case of appellant's No.2 who has been totally denied any, transfer of any portion in the property despite the fact that their predecessor‑in‑interest Muhammad Basharat did file transfer application on form KCH being a claimant displaced person from Jammu and Kashmir State. My visit of the premises established that these appellants are in possession' of two rooms and one kitchen on the ground floor. Therefore, the denial of transfer to them of these rooms is against justice. These 1,ooms should therefore be transferred to them."
The above order was maintained by the Settlement Commissioner, Sargodha, on 11th January, 1974, on the revision filed by the respondents by holding:
"Muhammad Basharat was a displaced person from Jammu and Kashmir and was in occupation of 2 rooms and a kitchen. He also submitted KCH form and has since paid Rs.5,207 to the Department. I, therefore, hold that he is entitled to the transfer of 2 rooms and a kitchen which is in his possession. The order of the Additional Settlement Commissioner dated 3‑6‑1971 is maintained."
The above findings were, however, reversed by a learned Single Judge of the Lahore High Court through the impugned order by observing:
"While finalizing the judgment, it was felt that the result of the acceptance of the writ petition was that Muhammad Basharat had lost his own portion to Sh. Bakhsh Illahi and the portion transferred to him in lieu thereof had gone to Chiragh Muhammad and thus he was left with no portion in spite of being a claimant displaced person in possession of a portion 'of the property and that seemed unjust. Therefore, the case was fixed for re‑hearing and the learned counsel for the parties' attention was drawn to all the facts of the case right from the beginning as well as the possibility that probably all the parties concerned were not on record. The latter observation was for the reason that initially the portion in possession of Muhammad Basharat had gone to Sh. Bakhsh Itlahi and instead Muhammad Basharat had been transferred the portion of Abdul Latif and Bashir Ahmad locals, 'for which he had‑ also paid the transfer price, but the latter.portion had been transferred in the remand proceedings to Chiragh Muhammad who had neither filed CH form for that, nor, could that be transferred to him as Chiragh Muhammad had already been transferred another residential house (Annexure "J") and nobody could be transferred two houses and that Chiragh Muhammad was not party to the present proceedings. In spite thereof, neither party chose to implead Chiragh Muhammad. Learned counsel for the petitioners stated that the petitioners do not claim any releif as against Chiragh Muhammad and that the heir of Muhammad Basharat is not impleading Chiragh Muhammad, as they are inter‑related. Learned counsel appearing for the heir of Muhammad Basharat admitted the' relationship and stated that the daughter of the heir of Muhammad Basharat is married to the son of Chiragh Muhammad. This may be the reason for the heir of Muhammad Basharat not to implead Chiragh Muhammad to take back the portion of Abdul Latif and Bashir Ahmad earlier transferred to Muhammad Basharat which has gone to Chiragh Muhammad and to insist for transfer of the portion in possession of Muhammad Basharat so that the heir of Muhammad Basharat retains the portion in possession as well as, allow the transfer of the portion of Abdul Latif and Bashir Ahmad earlier transferred to Muhammad Basharat to remain with her relation Chiragh Muhammad. This, of course, is not fair to have the cake and eat it. Therefore, there does not appear to be much of injustice in allowing the petition as was done at the time of first hearing. The portion of Muhammad Basharat was given to Sh. Bakhsh Illahi in the first instance by the D . S. C . in the year 1960 and Muhammad Basharat did not challenge the order to any appeal or revision. After remand, the portion was, again, given to Sh. Bakhsh Illahi by the D .S. C . on 17‑6‑1967 who paid the transfer price and was issued P . T. D . Muhammad Basharat was given the portion of Abdul Latif and he paid the transfer price thereof, thus accepting the order. When on appeal, it was directed by the learned Additional Settlement Commissioner on 23‑8‑1968 that portions for which P.T.D. had been issued be not touched and P.T.D. had been issued in favour of Sh. Bakhsh Illahi, Muhammad Basharat did not demur by filing any appeal or revision against the order of the learned Additional Settlement Commissioner. Therefore, thereafter, rights of Sh. Bakhsh Illahi could not be, interfered with. In this view of the matter and for the reasons earlier given, the petition is allowed but in the circumstances of the case, the parties shall bear their own costs."
3. Leave in this case was granted to consider whether the High. Court was justified in interfering with the division of the concerned evacuee property and transfer of its portion in possession of the appellant's predecessor to him and also to consider the question whether the issuance of the P.T.D. to respondents' side could at all be a bar to the transfer impugned in the High Court.
4. We have heard the learned counsel for the parties in detail in the light of the record. Admittedly both the parties are claimant displaced persons and were in possession of the respective residential portions of property bearing No.P‑207, Ward No.6, Faisalabad. Admittedly again, both the parties had submitted KCH forms for the transfer of the portions in their possession. It seems that the case has been mishandled as a result of which the appellant was deprived of the transfer of the portion of the house of which was an allottee occupant and was given a portion which was in possession of locals and his portion was added to the houses of the respondents. This was a basic mistake which was committed by the Deputy Settlement Commissioner, Faisalabad, in his first order passed somewhere in early 1960. The manner of the disposal of the property between the parties was in flagrant violation of the mandatory provisions of para.1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), wherein it has been laid down that a claimant displaced person, or a parent, children or spouse of the claimant shall be transferred the house or portion thereof which was in his possession. It was also provided that if a house or part thereof was in possession of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession. It is an admitted position that the appellant had a prior possession of the portion applied for by him as against the respondent. The orders of the Settlement authorities show that the appellant was deprived of the portion in his possession for which proper form was submitted by him on the grounds foreign to the Settlement Act. Though this mistake was rectified by the Additional Settlement Commissioner, Sargodha, and the Settlement Commissioner, Sargodha, through their orders dated 3‑6‑1971 and 11‑1‑1974, but again the High Court set these orders aside again on the grounds not germane to the relevant law on the subject. In view of the above, the addition of the portion in possession of the appellant to the portion in possession of the respondents and its transfer to them cannot be maintained at all.
5. The contention of the learned counsel for the respondents that the transfer of the property in favour of his clients had attained finality and P. T. D. was issued to them in 1967, therefore, their case cannot be re‑opened has no merit whatsoever. The term 'final order' as defined under the Permanent Transfer Rules means‑‑
"an order in respect of the entitlement of the proposed or provisional transferee passed by a competent Settlement Authority or Court against which no appeal, revision or any judicial proceedings before a competent Settlement Authority or Court is pending or the period of limitation for instituting such proceedings has expired,"
True that as per the record of the Settlement Department a P.T.D. has been issued to the respondents on 23‑12‑1967 on the strength of the order of the Deputy Settlement Commissioner, Faisalabad, dated 17‑6‑1967, but it is equally true that the same very order of the Deputy Settlement Commissioner dated 17‑6‑1967 was the subject‑matter of as many as six appeals before the Additional Settlement Commissioner, which were disposed of by him on 23‑8‑1968. Thus, it is abundantly clear that no final order, as per the P.T.D. Rules given above, was passed in favour of the respondents in respect of their entitlement and, therefore, no P.T.D. could be issued to them. Reliance in this respect is placed on Mst. Hussan Jan v. Abdul Rahman and another 1976 S C M R 119 wherein it has been laid down:
"The reliance by the petitioner on the fact that a P.T.D. had also since been issued in her favour was, in our opinion, not of much help to her because litigation was still pending. Therefore, it did not vest any right in her."
Even if the P.T. D. had been issued in the name of the respondents, it cannot stand in the way of the appellant because the same was based on the order which was void ab initio.
6. The upshot of the above is that the appeal succeeds, the order of the learned Single Judge of the High Court dated 9‑4‑1980 is set aside and that of the Settlement Commissioner, Sargodha, dated 11‑1‑1974 restored but there is no order as to costs.
M. I. /S‑111/S Appeal accepted.