SYED ZAHID HUSSAIN, J.---Writ Petition No.423/R of 1968 was dismissed on 6-6-1968 by a learned Single Judge of this Court where against this L.P.A. Has been filed under clause (X) of Letter Patent of High Court of West Pakistan. It was once dismissed for non-prosecution on 23-11-2000, restoration whereof was also declined by the learned Division Bench of this Court then seized of the matter. The same was assailed before the Honourable Supreme Court of Pakistan and the matter was remanded to this Court vide order, dated 27-10-2005 passed in C.A. No.1484 of 2005 and C.A.
No.1485 of 2005. Resultantly, we are called upon to decide this oldest matter before this Court.
2. The factual background which has given rise to the litigation is as follows:-- The dispute centers around Property No.SE-19-R-85 A(i) and (ii) on the one hand and Property No.SE-19-R-87 on the other, situated along the Mall Road, Lahore. The first property i.e. 85A(i) and
(ii) was initially allotted to Shahnawaz Servicing Station Ltd. Running a petrol pump and a service station, later renamed as Anas Muneer Ltd. On the basis of possession and N.C.S. Form it was transferred in the name of Shahnawaz Servicing Station Ltd. Charing Cross, The Mall, Lahore, as is evident from Appendix ix and P.T.O. Dated 8-1-1960. It was against the price of Rs.51,508/8. The entire price is said to have been paid and dues were cleared by 6-4-1960. This property will hereinafter be referred as "petrol pump". The adjoining property i.e. SE-19-R-87 comprising Nedous Hotel, was' disposed of as Big Mansion and Hotel which .Was put to auction on 21-8-1961 and by giving highest bid of Rs.1,21,00,000 was purchased by Mr. D.B. Avari. The said auction was confirmed on 7-9-1961. Though the P.T.C. (Permanent Transfer Certificate) was issued in the name of Mr. D.B.
Avari Managing Director, Beach Luxury Hotel, Karachi and others on 6-10-1964 some dispute about the clearance of dues is still pending with the Department as a result of remand order, dated 28-11- 1992 passed in Writ Petition No.29/R of 1980. This property will be referred to hereinafter as "Hotel" which is now known as Avari Hotel, Lahore. It may be mentioned here that neither the transfer of petrol pump in favour of the appellant nor the sale of Hotel in favour of respondent No.1 was assailed by anyone through any appeal/revision. Some correspondence that took place between respondent No.1 and the Department shows that there was some dispute about payment of price and its mode i.e. Instalments. It was however, on 29-1-1962 when for the first time a Deputy Settlement Commissioner acting for Settlement. Commissioner (Industries), Lahore conveyed the order of the Chief Settlement Commissioner, Pakistan to the Additional Settlement Commissioner, Lahore which gave rise to the subsequent litigation between the parties. Due to its relevance and import the same is reproduced in extenso:-- Most Immediate Office of the Chief Settlement and Rehabilitation Commissioner, Pakistan.
11-Egerton Road, Lahore.
No.106/F&M-Reh./62Dated 29-1-1962 From Settlement Commissioner (Industries), Lahore.
To Additional Settlement Commissioner, Lahore.
Subject: Disposal of big mansions and hotels PropertyNo.S-19-R-85 known as Nedous Hotel, Upper Mall, Lahore.
Two units bearing Nos.S-19-R-85A (Khasra No.1048) and S-19-R-85A(2) Khasra No.1047 have been transferred to Messrs Shahnawaz Servicing Station Ltd., The Mall, Lahore against one NCS Form.
Only one unit could be transferred to them. 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 Messrs Shahnawaz Ltd. Is illegal and calls for immediate cancellation.
(2) The Chief Settlement Commissioner, Pakistan, had ordered that you may please re-examine the case and pass necessary orders 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 to 145 is also, sent herewith.
Deputy Settlement Commissioner(I) for Settlement Commissioner (Industries), Lahore.
No. 106-F&M-Reh/62Dated 29th January, 1962 A copy is forwarded to the Deputy Settlement Commissioner-I, Lahore for information.
Deputy Settlement Commissioner (I) for Settlement Commissioner (Industries), Lahore.
3. Pursuant to this the Additional Settlement Commissioner (Judicial), Lahore proceeded with the matter and passed order, dated 9-11-1965, on his view that "there is a multiple transfer of the same property in favour of Mr. D.B. Avari auction-purchaser on the one hand and Messrs Shahnawaz Servicing Station Ltd. Transfer under Settlement Scheme No.1 on the other". It was concluded by him that "Since the disposal of the hotel as a big mansion in favour of Mr. D.B. Avari is made through the orders of Chief Settlement Commissioner and Rehabilitation Commissioner parallel transfer of a part of the same property by lower authority-Deputy Settlement Commissioner cannot hold good".
Thus, the transfer in favour of Messrs Shahnawaz Servicing Station Ltd. Qua the said "segment of the area of the hotel" was cancelled by him. The appeal filed by the appellant thereagainst was dismissed by the Settlement Commissioner on 25-3-1968. As mentioned above the writ petition filed by the appellant was then dismissed on 6-6-1968 by a learned Judge of this Court.
4. Extensive hearing has been given by us to the learned counsel for the parties. We are, however, constrained to note our dismay that the entire record has not been produced despite our directions. Since the matter is very old we have not thought it proper to keep it pending merely to await the production of the record which as per the learned counsel for the Department was being searched. Even the learned counsel for the parties chose to argue the matter as per the present material on the record.
5. There are few aspects of the matter which are admitted and undisputed i.e. The transfer in favour of the appellant vide order of Deputy Settlement Commissioner dated 7-1-1960 and the transfer of the hotel in favour of respondent No.1 as per auction held on 21-8-1961. The learned counsel for the appellant has from the material on record endeavoured to establish that by ordering transfer of the property in favour of the appellant the Deputy Settlement Commissioner had committed no illegality nor there was any element of fraud or misrepresentation involved or even alleged at any stage. He has argued that with the omission of section 20 by virtue of Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance, 1962 (Ordinance (II of 1962), dated 13-1-1962 there was no power left with either the Chief Settlement Commissioner or any of the Settlement Authorities to reopen the transfer made in favour of the appellant which had become final. According to him the entire proceedings and exercise undertaken by the Settlement Authorities as a result of order, dated 29-1-1962 was unlawful and of no legal effect. It is contended that by no means the property which had been transferred to the appellant could be taken away from him for which he had paid the price and that it could not be held subsequently as part of Hotel. Reference has been made by him to Mst. Murad Bibi and another v. Mst. Ramzan Bibi and others 1968 SCMR 1007; Maulana Abdul Quddous Behari v. Chief Settlement 'Commissioner and others 1969 SCMR 561; Muhammad Sharif v. Settlement Commissioner and 2 others 1973 SCMR 495; Syed Shabbir Hussain and 2 others v. Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1973 Note 110; Muhammad Hussain v.
Muhammad Bashir and 4 others PLD 1974 Lah. 446; A.S. Kazi v. Government of Pakistan and 6 others 1975 SCMR 191; Muhammad Mehdi v. Dr. Habibur Rehman's and 2 others PLD 1978 Quetta 8. Another aspect which has been highlighted by him is about the order of - the Chief Settlement Commissioner, which was conveyed to the Additional Settlement Commissioner vide letter, dated 29-1-1962. According to him the same purported to cancel the transfer made in favour of the appellant without any notice and hearing him and the Additional Settlement Commissioner being a subordinate functionary in the hierarchy had indeed no power left except to follow the mandate and line of the said directive of the Chief Settlement Commissioner. This according to him was a patent illegality which renders the entire proceedings as of no legal effect. Reference has been made to Sheikh Fazal Ahmad v. Raja Ziaullah Khan, P.C.S. Claims Commissioner, West Pakistan, Lahore and another PLD 1964 SC 293; Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61; Taj Din and others v. Settlement Commissioner (Lands) NLR 1979 Civil-Lahore 621 and Abdul Qadir and others v. The Settlement Commissioner and others PLD 1991 SC 1029. According to him nothing has been brought on record to establish that Property No.SE-19-R'87 was declared by the Chief Settlement as a Big Mansion or Hotel. This way on the strength of Mian Muhammad Rashid v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another PLD 1962 (W.P.) Lahore 217; M.M. Rashid v. The Chief Settlement and Rehabilitation Commissioner and another PLD 1963 (W.P.) Lah. 227; Mst. Aisha Khatoon v. Chief Settlement Commissioner and others PLD 1964 (W.P.) Lah. 513; Noor Muhammad Butt and others v.
The Chief Settlement and Rehabilitation, Commissioner, Lahore and others PLD 1968 SC 336; Ch. Abdul Qayyum v. Chief Settlement Commissioner, Pakistan, Lahore and others PLD 1968 SC 362 and S.M. Fakhar Hussain and 6 others v. Abdus Sattar and 4 others PLD 1971 SC 438 it is sought to be pointed out that the precondition of declaration for disposal of the property as big mansion being lacking its auction or disposal in favour of respondent No.1 was lacking legal sanction.
6. The learned counsel for respondent No.1 has on the other hand placed reliance upon the findings recorded by the Settlement Authorities that a segment of the property, which was part of big mansion, hotel could not have been transferred in favour of the appellant. According to him the appellant had failed to establish that the property was lawfully transferred to him by the Deputy Settlement Commissioner as being a non-claimant he could not seek transfer of more than one shop under the law. It is contended that such a transfer could always be cancelled by the Settlement Authorities. He has shown the P.T.C. (Permanent Transfer Certificate) issued in favour of respondent No.1 to establish that possession of the entire property which was transferred to respondent No.1 had not been delivered and part thereof was in possession of the appellant. He has referred to Fajar Ali and others v. Mst. Jamila and others PLD 1969 Lah. 545; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Abdul Majid v. The Settlement Commissioner, Karachi and others 1975 SCMR 423; Ghulam Muhammad and others v. The State PLD 1979 Quetta 1; Muhammad Fazil and another v. Settlement and Rehabilitation Commissioner, Rawalpindi and others 1981 SCMR 185 and Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344.
7. The respective contentions have been considered. The material available before us makes it abundantly clear that the transfer of petrol pump in favour of the appellant was prior in time (7-1- 1960) than that of the disposal of hotel in favour of respondent No.1 on 21-8-1961. So far as the transfer order in favour of the appellant is concerned, there was neither any appeal thereagainst nor anyone challenged his transfer till such time respondent No.1 came into picture on purchase of the hotel through auction. We find force in the contention of the learned counsel for the appellant that the transfer which had become final could not 'be reopened in the manner it was done at the instance of respondent No.1. To us it appears that apart from probing the controversy as to the ownership of properties by the evacuees (erstwhile owners) the more fundamental issue is the competency and legality of orders passed by the Settlement Authorities including that of 29-1- 1962. The order of the Chief Settlement Commissioner conveyed to the Additional Settlement Commissioner vide memorandum dated 29-1-1962 suffers from multiple legal defects and infirmities. Prior to the said order, Ordinance II of 1962 had come into force with effect from 13-1-1962 whereby provisions of subsections (2) and (4) of section 20 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 stood omitted. No proceedings were pending against the appellant at that time. The Chief Settlement Commissioner or his office on 29-1-1962 had no lawful authority to issue any such directive. Reference in this context may be made to Khair-ud-Din v. Abdul Hamid and others PLD 1966 (W.P.) Lah. 362; Noor Muhammad and others v. C.S. & R.C. And others PLJ1974 Lah. 218; Manzoor Ahmed and 4 others v. Chief Settlement and Rehabilitation Commissioner, West Pakistan and 2 others PLD 1975 Lah. 1331; Sher Muhammad v. Nizam Din and another 1974 SCMR 368 and Khawaja Riffat Ali v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and 2 others 1975 SCMR 322. He thus, lacked jurisdiction in the matter. The saving clause added on 17-3- 1962 vide Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance, 1962 (Ordinance XIII of 1962) is also not invokable as in terms the said clause was not applicable to the facts and circumstances of this case. The other defect of fatal nature in the said directive is that before passing of the said order no notice was given nor any opportunity of hearing was afforded to the appellant. Such a directive by the Chief Settlement Commissioner did not find favour with this Court in the case of Raja Muhammad Iqbal and 2 others v. Chief Settlement Commissioner and 2 others 1975 Lah. 1508 and it was observed that such proceedings and orders of the learned Chief Settlement Commissioner and the learned Settlement Commissioner were without lawful authority. In Syed Wajid Ali and 4 others v. Globe Automobiles Ltd. And another PLD 1967 Lah. 946 question about the disposal of evacuee business premises being used as petrol pump and showroom for cars and trucks came to be considered before the Court. The same had been disposed of as a shop in favour of the petitioner through auction and P.T.O. Had been issued in his favour. His transfer A was sought to be reopened at the instance of the respondents on the strength of a subsequent policy introduced through a press note as a result whereof the transfer in favour of the petitioner was cancelled by the Settlement Authorities. The matter eventually reached before this Court and it was observed that "Assuming that the property in dispute was a converted property and was wrongly disposed of as a shop, even then its transfer could not be questioned in view of the terms of the Press Note, relied upon by respondent No.1. The clear intention of the Press Note was that the transfer of properties before the publication of this Press Note under whatever description it may have been made, was not to be called in question. It was a salutary provision introduced with a full consciousness that rights already acquired could not be nullified with retrospective effect by the issuance of a Press Note. If once we grant that already finalized cases could be reopened on the basis of this Press Note, the protective provisions contained therein would become nugatory. We have to enforce the provisions of the Press Note as they are and should not accept an interpretation of its contents which run counter to its clear intention." The principle deducible therefrom is that a transfer which had become final, cannot be reopened subsequently, except in accordance with law through the machinery provided by the Displaced Persons (Compensation and Rehabilitation) Act. Further strength to such an approach to the matter is found from S. Anwar Hussain Sani v. Sarfraz Ahmad and others PLD 1971 SC 669 wherein it was observed that after the transfer had become final "modification of boundaries of the transfer property" by the Settlement Authorities was an action without jurisdiction. In Ali Muhammad v. Haji Hussain and 2 others PLD 1975 Kar. 971 a learned Division Bench of that Court observed that "Haji Hussain merely made a miscellaneous application for demarcation and as held by their Lordships of the Supreme Court in S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others PLD 1971 SC 669, such procedure is not available to increase the area, or add to, the property transferred to a person under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by cancelling transfer of a property to another person, It may here be' added that the view we have taken in'.This judgment, that no power was available to the Addl. Settlement Commissioner or any other Settlement Authority to. Deal with the property transferred to the appellant, has also been adopted in a Karachi decision, Mst. Hajiani Fatima Bai and 6 others v. Ibrahim and 13 others PLD 1972 Kar. 610".
The principle has been followed in large many subsequent cases A including by this Court in Jamal-ud-Din v. Member, Board of Revenue and 4 others 2001 CLC 81. It may be mentioned here that there appear to be no real distinction in cases where a transfer became final in view of section 22 of the Act due to non-challenge to the same under the law and those where P.T.D. Had been issued. The only ground and basis for 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 Fazil and others PLD 1975 SC 331. In the instant case, however, there is not even any allegation of fraud or misrepresentation attributed to the appellant in seeking the transfer of the property what to say of any material. Assuming, if at all there be any irregularity on the part of the Settlement Authorities in transferring the property to the appellant it was against the price which had been paid by him much before the transfer of the Hotel in favour of respondent No. 1 and issuance of memorandum dated 29-1-1962. On no discoverable basis the property transferred to the appellant could be taken away from him.
8. Though in view of the above factual and legal position the other aspects need not be dealt with yet since some arguments were addressed on certain aspects, we may observe that an evacuee business premises is considered as a `shop' in view of section 2 (12) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which however, does not include a building or premises declared under paragraph 16 of the B Schedule to be a big mansion or hotel. Perusal of paragraph 16 of the Schedule, shows that a declaration by the Chief Settlement Commissioner of a building or premises to be a big mansion or hotel is a precondition for its disposal by unrestricted public auction. Settlement Scheme No.III framed for such purpose lays down a procedure for the disposal of big mansions and hotels. Paragraph-1(3) thereof again emphasizes a declaration to be made by the Chief Settlement Commissioner. Paragraph 2 of the Scheme enables the Chief Settlement Commissioner "from time to time" to make declaration of evacuee buildings and premises. The later provisions of the Scheme prescribe the procedure then to be followed for disposal of a big mansion or hotel. Nothing has been brought on record and despite our insistence even the Departmental representatives were not in a position to take any definite position as to when Nedous Hotel was declared by the Chief Settlement Commissioner as Big Mansion and Hotel so as to be dealt with as such and disposed of under the Scheme. Had any proceedings about the declaration by the Chief Settlement Commissioner been brought on record the precise area/location/description with boundaries thereof would have been known. The proceedings of the Auction Committee dated 21-8-1961 (when it was put to auction) only lead to an assumption that the declaration must have preceded the said date and that it was Property No.SE-19-R-87 known as Nedous Hotel, which was put to auction. Aks Shajra is indicative of no definite area of the hotel.
At one place it is shown as 96 K, 1 M, 12 sq.Ft. In the same document its area is, mentioned 9.92.
Acres, which approximately comes to about 80 Kanals. P.A. List of the year 1949 shows its area as 80 Kanals. The auction-purchaser who signed the said document Aks Shajra on 21-8-1961 (before or after the auction), should have at that time enquired about the exact area and taken steps for the removal of such obscurity and confusion or that whether any part of the hotel property had been transferred to anyone else. Nothing was done except a belated claim made through miscellaneous application, which resulted in reopening of the transfer in favour of the appellant and thus, litigation ensued as a result of directive/memorandum dated 29-1-1962, which has kept them engaged till date.
As a result of the above we have arrived at the conclusion that reopening of the transfer in favour of the appellant which took place in the month of January, 1960, dues of which were also cleared in April, 1960, was unwarranted by law. The order, dated 29-1-1962 issued almost two years after the transfer and all subsequent proceedings/orders ensuing the same were of no legal effect. By setting aside the order passed by the learned Single Judge in the writ petition by means of which the same was dismissed, we accept the appeal. No order as to costs.