' Property No, P/2I9, Ward No, 5, Street No, 2, Bhawana Bazaar, Faisalabad is a composite building consists of two shops and two residential units. One residential unit is situated on the top of the shops and the other residential unit is situated behind the shops. The respondent unit on the top of the shops was in possession of the predecessor in interest of respondents 3 to 11 who on the basis of possession of his wife Mst. Bilquees Bagum submitted a C.H. Form on 7th November, 1959 for transfer of House No, P/219. The residential portion at the back of the shops, according to the Survey Register, was in the possession of Mst. Beer Bibi, the daughter in law of Nek Muhammad predecessor in interest of the petitioners and his son Jan Muhammad. Mst. Beer Bibi is the wife of Fazal Muhammad and must have joined the family of Nek Muhammad after her marriage with Fazal Muhammad. Fazal Muhammad and Jan Muhammad are supposed to be residing in the house with their parents because no other property is stated to be in the possession of Nek Muhammad and his family. A C.H. Form was filed on behalf of Nek Muhammad by his son Fazal Muhammad per power of attorney as Nek Muhammad was away to Quetta. The Deputy Settlement Commissioner exercising the delegated powers of Chief Settlement Commissioner, transferred the residential unit at the back of the shop in the name of Nek Muhammad. According to the descriptions of the residential portion as given in the writ petition, it consists of two main rooms on the ground floor. The residential portion on the top of shop comprised of eight rooms was transferred to Rao Jamshed Ali Khan. One shop was transferred to Muhammad Amin and the other shop was kept for disposal being in possession of local. This order of division and transfer is dated 23rd January, 1960. Rao Jamshed Ali Khan filed a time-barred appeal against Nek Muhammad claiming the transfer of his residential unit also. The appeal was dismissed on 17th September 1962, and revision preferred against that order was dismissed on 17th September 1962, and second revision similarly dismissed on 21st February.
1966. Nek Muhammad, in the meantime, paid the entire price and public dues of his residential portion and obtained the P.T.D. On 26th June, 1963. Rao Jamshed All Khan filed W.P. No, 747-R of 1966 and during its pendency he died and succeeded by his legal representatives respondents Nos. 3 to 11. But for the convenience the case will be referred to as between Nek Muhammad and Jamshed Ali Khan.
2. On 6th November 1973, that writ petition came up for hearing. The learned counsel for the respondents stated that Mst. Fazal Bibi from among the legal representative of Nek Muhammad had died on 13th December, 1968 and her legal representatives had not been brought on record. An application for impleading her legal representatives was filed on 12th November, 1973 in which no good cause was shown for filing the application after time and setting aside the abatement.
Accordingly, the case came up for hearing before his Lordship the Chief Justice who was pleased to dismiss the application and also recorded the order that the petition had abated in toto. Thus the order of the Deputy Settlement Commissioner had attained the finality for all intents and purposes coupled with the fact that P.T.D. Was issued to Nek Muhammad as far back as 26th June, 1963. During the pendency of the writ petition, Rao Jamshed Ali Khan had filed a complaint before the Settlement Department that the residential unit transferred to Nek Muhammad was in the possession of his daughter-in-law whose possession could not be claimed for the purpose of transfer by Nek Muhammad under Scheme No, I. The matter was taken up in suo motu revision by Capt. M.A. Majeed, the then Settlement Commissioner, Sargodha who dismissed the complaint on the ground that the case had already been decided between the parties by the Settlement Commissioner by his order dated 21st February 1966, it could not be reopened. Then Rao Jamshed Ali Khan filed an unsigned complaint with the. Enforcement staff that claim of Nek Muhammad could not have been verified for the house he had abandoned in India. On reference by the Enforcement Staff the claim was declared to have not been lawfully verified and was cancelled by the Claims Commissioner. The petitioners filed Writ Petition No, 1509-R/64 and the case was remanded to the Claims Commissioner which came up for hearing before Mr. M. A. Majeed, Settlement Commissioner who transferred the case on the application of the respondent to the Court of Mr. Ghulam Baqir Ali Khan who by his order dated 19th November, 1975 held the claim to have not been verified lawfully. After the cancellation of the claim, Mst. Bilqis Begum filed an application on 20th March 1976, before the Member, Board of Revenue stating that since the claim had been cancelled the transfer of residential unit to Nek Muhammad should also be cancelled. On this application advocate employed by the department was asked to tender the advice who directed Mst. Bilqis Begum widow of Rao Jamshed Ali Khan by order dated 10th November 1977 to pursue her case before the Deputy Settlement Commissioner. Mst. Bilqis Begum widow of Rao Jamshed Ali Khan who is respondent No, 3 in this writ petition submitted an application on 25th January 1977, for initiating the proceedings against the petitioners for cancellation of the residential unit transferred to Nek Muhammad. The Deputy Settlement Commissioner vide his Memo. Dated 27th March 1976 sent up the case to the Chief Settlement and Rehabilitation Commissioner with the remarks as under :- "So far as the cancellation of transfer of the portion from the name of Nek Muhammad and transfer of the same to ffst. Bilqis Begum is concerned the matter having already been finalised and P.T.D.
Issued is not in my competence. The legal issue is involved and the Deputy Settlement Commissioner (Legal) or D.S.C. (Policy) may be in a position to suggest some appropriate action in this respect."
' Mst. Bilquees Begum submitted another application on 8th June 1977 to the Member, Board of Revenue on which the advice of the departmental Advocate was called for. The advocate vide his note dated 28th June 1977 advised the department that prayer of Mst. Bilquees Begum may be granted by regarding her case as pending proceedings. The advice was sent to the Deputy Settlement Commissioner with the signatures of Member, Board of Revenue directing him to proceed further in the light of the legal advice. It is that advice which has given a handle to the respondent to press an application made in the year 1976 for the first time to reopen the case of transfer of the residential portion in favour of Nek Muhammad under the Displaced Persons (Compensation and Rehabilitation) Act repealed on 30th June 1974. Thus the advice which was on the wrong side had invested a ground for assumption of jurisdiction totally unlawfully by the Deputy Settlement Commissioner to reopen the case finally decided by the disposal of W.P. No, 747-R/66 on 22nd January 1974, issuance of P.T.D. On 26th June 1963 and rejection of suo motu revision on 27th June 1974. The Deputy Settlement Commissioner by his order dated 15th November 1977 cancelled the transfer of residential portion from the names of the petitioners who succeeded to the property on the death of their father Nek Muhammad and transferred this second house also to respondents Nos. 3 to 11 through their predecessor in interest Rao Jamshed Ali Khan. This order is impugned by means of this writ petition.
3. The first question for consideration in this writ petition is whether the Deputy Settlement Commissioner whose office ceased to exist with the repeal of Displaced Pet sons (C & R) Act on 30th June 1974 could assume the jurisdiction to re-open the transfer finalized in all respects under the repealed Act on the wrong advice and illegal direction of the Chie Settlement Commissioner on the application of the respondent made for the first time in the year 1976 and repeated in the year 1977. After the enactment of Act XIV of 1975, only saving is to the pending proceedings. This expression has been used in concrete sense. Proceedings must be physically pending in the record or file. There is no scope for regarding any other kind of proceedings pending on the advice of departmental advocate and the dictates of the Member, Board of Revenue if physically the file or record of the proceedings was non-existent. I asked the learned counsel appearing for the respondents to point out any provision or any word or expression used in any provision from which an authority can be derived by any officer notified by the Provincial Government under section 2
(2) of Act XIV of 1975 to re-open cases finalized under the displaced Persons (C & R) Act. His argument was two-fold. He submitted that since the proceedings for the cancellation of the claim of Nek Muhammad were pending, the transfer finalized under the repealed Act having been obtained as claimant would be affected and deemed to be pending. I invited his attention to section 14 of the Displaced Persons (Claims and Registration) Act, 1956. The penalty under which would extend to the conviction and recovery of benefits of the claim itself. He then submitted that he has no quarrel with the proposition that the Deputy Settlement Commissioner had wrongly invoked that section to reopen the case of transfer finalized-under the Repealed Act. He also conceded that there are no clear provisions under which the case finalized under the Repealed Act could be re-opened Act XIV of 1975. However, relying on The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (1), he contended that even the tribunal of limited jurisdiction is duty bound to annul the order secured on the basis of fraud. But in this case, the transfer was made to Nek Muhammad in due course of proceedings and it was finalized by the dismissal of Writ Petition No, 747-R/66 on 22nd January 1974 by the High Court. To this, he submitted that the High Court has not recorded any order of determination. I asked him to show that the order of dismissal does not produce the same result as the order of acceptance. He has no submission to make in this regard. At the most, in this case, as provided by section 18 of the repealed Act, the compensation obtained by the claimant in the first instance could be recovered from him and that legal position was accepted by the department itself who issued a directive that if the claim of any person had been rejected, the form submitted by that person be treated as a form by a non-claimant but nowhere it was provided that he could be deprived of the right of rehabilitation as recognized in relation to him by the law itself. The transfer of the evacuee property was covered by the repealed Act completely and if no provision was made for depriving a person, who later on become a non-claimant on account of rejection or cancellation of his claim would be considered entitled to the transfer of the property in his possession on which his rehabilitation had been secured by the law itself.
4. The second point for consideration is, that where the property held to be divisible by the delegates of the Chief Settlement Commissioner and that order of division upheld by the highest authority in the hierarchy of Settlement Department constituted under the Displaced Persons (C & 12.) Act and the transfer also finalized by dismissal of writ petition by the High Court, could that question on new criticism be opened by any office A appointed under section 2 (2) of Act XIV of 1975. The question of (1) PLD 1975 SC 331 division is relateable to super-structure of the building alone and it has nothing to do in the first instance with the claim and possession of any person. I confronted the learned counsel for the respondents with Abdul Majid Khan v. The Chief Settlement f, Rehabilitation Commissioner of Pakistan, Lahore (1). In that authority it has been held, while placing construction on word 'Unit' used in the Repealed Act, that the word 'Unit' is necessarily dissociated from its possession. It is used in its ordinary and popular sense of the integrated portion of the building structurally capable of being used as self-contained portion. The learned counsel for the petitioner has further relied upon Abdul Majid v. Chief Settlement Commissioner, Settlement Commissioner, Lahore and others (2) that in case of composite building, the first question to be determined by the Settlement Authorities is of application of mind to the question of division and then to proceed with the determination of entitlement of the persons in possession.
Once the unit from the rest of the building had been declared to be independent and self contained, any party in possession of other part of the building had no right to assert any claim against the unit so separated as self contained.
5. The learned counsel for the respondents feeling unsafe on the legal plane attempted to show from certain documents filed by him that Nek Muhammad was not in the possession of the residential unit transferred to him and the power given by Nek Muhammad to his son Fazal Muhammad was restricted to the prosecution of proceedings in respect of his claim. But the learned counsel for the respondents has failed to invite the attention of this Court to any material from which it could be gathered that Nek Muhammad was not ordinarily living in the house and that his abode was in a different property. Merely because the name of his daughter in law alongwith his son was mentioned in the Survey Register would not give rise to the presumption that Nek Muhammad and his family was not in possession of the house in dispute, not only at the relevant time but also since it was occupied in the year 1947. The daughter in law of Nek Muhammad was not the member of his family but she was brought into that house by marriage with his son Fazal Muhammad who alongwith his brother has been residing with their parents including Nek Muhammad in that house. Nek Muhammad being the head of the family was actually in possession of the house and the petitioners being the members of his family living in subordinate position, Nek Muhammad had also not ejected to the power given to Fazal Muhammad for filing the form and obtaining the transfer, making the payment of price and securing P.T.D. And defending all kinds of litigation brought against him by the respondents and it could not be said that he had not ratified the power. Also proceedings are to be relegated to the law available at the time of commencement and in this case the year 1976 when the Act under which the transfer was finalized stood repealed and even the definition of 'Possession' deleted from the Repealed Act a year before by Amending Act.
6. The learned counsel for the respondents has also contended that before the Deputy Settlement Commissioner, only Fazal Muhammad appeared to defend the proceedings and other petitioners had not appeared and were declared ex parte. While making this submission, the learned counsel has over looked the fact that property is one and defence of the petitioners is one and the same and they are being the legal representatives (1) PLD 1968 SC 154 (2) PLD 1967 SC 437 of the rightful transferee have got the right to invoke this jurisdiction and they were not required to go before the Deputy Settlement Commissioner who had acted mala fide and without jurisdiction. This is the criticism without leading the matter to any logical end as the real matter was the transfer which had been concluded by the final determination of the entitlement of the petitioners and there predecessors in interest to retain the house in dispute. On such after thoughts and criticism as leveled in the impugned order, it was wholly unjust on the part of the officer appointed under section 2 (2) of Act XIV of 1975 to re-open the transfer finalized under the Repealed Act.
7. I am doubtful even about the ability of the Deputy Settlement Commissioner to write an order in which the whole criticism of the respondents has been incorporated and the case of the petitioners as to the question of assumption of jurisdiction and entitlement which attained finality not considered on legal plane. The Deputy Commissioner on the wrong advice of the departmental advocate and at the dictates of Member, Board of Revenue who had no authority to issue such directions under the law, had assumed the jurisdiction in the present case not only mala fide but also without any lawful authority. He has trampled the justice under his feet. I would have awarded costs against him if he had dared to appear in this case to defend the impugned order. The impugned order, in the circumstances, is held to be without lawful authority and of no legal effect.
8. The writ petition is accepted with costs.