According to the contents of this writ petition, (written statement has not been filed by any of the respondents) Plot No, 89, G-Block, Model Town, Lahore (hereinafter to be referred as the said plot) was an evacuee property. An application was filed by two persons for its transfer under Settlement Scheme No, VIII to Deputy Settlement Commissioner (Plots) who rejected the said form vide order dated 18.6.74. W.P. No, 19-R-83 filed by one of the said person, namely, Hafiz Abdul Ghani was dismissed on 18.1.83 while CPLA No, 1370-L/83 was withdrawn on 14.4.90. Sabra Begum the late wife of the petitioner took possession of 4 kanals out of the said plot in 1979, a plan was got approved from the Cooperative Model Town Society, water and electricity connections were also provided in the year 1975 as also sui gas. Her name was registered in the record of Excise and Taxation Department in 1975-76. A suit filed by her against the said Society was decreed on 25.9.94 and affirmed in first appeal on 13.3.96. S.K. Masood Mirza and others fabricated some sale proceedings and got issued a transfer order on 29.6.74. This transfer order was later cancelled by the Settlement Authorities and the plot was declared to be available property. W.P. No, 191-R/78 filed by the said persons was dismissed on 6.3.90 (judgment reported as PLJ 1990 Lahore 283). A direction was issued to D.S.0 (Plots) to keep the file under a seal to avoid any future attempt at forgery. The case was remitted to Notified Officer vide judgment dated 27.5.92 passed in C.A. No 867-L/90 filed by the said S.M. Masood Mirza etc. While the matter was pending before Ch. Talib Hussain, Member Board of Revenue. S.M. Masood Mirza etc. themselves moved an application that one Rabia Begum widow of Muhammad Shafi had been transferred the plot on 22.7.76. The finding regarding fraud was reiterated by the said Member, Board of Revenue in order dated 21.11.92. However, Mst. Rabia Begum was held to be transferee. This order was challenged by the said wife of the petitioner in W.P. No, 90-R1993. One Hafiz Abdul Ghani also filed W.P. No, 95-R-93. These writ petitions were decided on 9.4.2002. The matter was remitted to the Board of Revenue/Notified Officer for determining the validity of the transfer order dated 22.7.1976 issued to Mst. Rabia Begum. Attempts were made to alienate the plot on the basis of the said transfer order dated 22.7.76. The late wife of the petitioner filed a suit on 10.4.96. The learned Civil Judge summoned the records. The suit was decreed on 4.7.98, as it was stated on behalf of the settlement department that the plot had not been transferred to anyone. His wife died on 25.12.2000 and apart from the petitioner four daughters were left as L.Rs, An application was filed complaining non-implementation of the said decree wherein the Secretary S.R,. Board of Revenue took the plea that the property has not been transferred to anyone. The matter is still pending. W.P. No, 62-R-2002 was filed which was disposed of on 15.2.2002 with the direction to the Member Board of Revenue/Notified Officer to conclude the proceedings. Crl. Org. No, 843-W-06 was filed. Learned counsel for the Department assured that the matter will be decided within 3 months. The Criminal Original was disposed of on 22.11.2006.
Vide order dated 20.2.2007 the said Member Judicial-I declared transfer order dated 22.7.76 in favour of Mst. Rabia Begum to be illegal and held Mst. Sabra Begum late wife of the petitioner to be entitled for transfer of 4 kanals out of the said plot. The matter of documentation was to be done by Deputy Administrator (R.P), Lahore.
2. In May, 2007 the petitioner learnt that the Secretary of the Cooperative Model Town Society has written a letter dated 31.3.07 to Secretary S.R, Board of Revenue seeking verification of transfer order dated 23.6.60 purported to have been passed by Khan Muqarrab Khan, D.S.0 (Plots) Lahore, in the name of Khera son of Kaka. It was also stated that Respondent No, 5 has requested for grant of membership of the Society on the basis of said document i.e PTO dated 27.12.60 and PTD dated 24.5.62. The petitioner filed an application on 14.5.2007 before the Provincial Verification Committee stating all the said facts. Verification Committee met on 9.7.07 under the Chairmanship of Ch. Muhammad Zafar Iqbal, Member Judicial-V and expressed its inability to verify the PTD in the name of Khera. Thereafter the petitioner was directed to appear before same Ch. Muhammad Zafar Iqbal on 3.8.07 in connecting with some inquiry. Ultimately on 7.12.2007 the said Ch. Muhammad Zafar Iqbal claiming himself to be the Chief Settlement Commissioner Punjab, Lahore, proceeded to hold the said PTD to be genuine. At the same time he rejected the application of the petitioner for transfer of the property.
3. Mr. Muhammad Nawaz Kasuri, learned counsel for the petitioners contends that the Chief Settlement Commissioner ceased to exist and the said Officer who was a Member of Board of Revenue had no lawful authority to set aside the order of the Administrator (R.P) and further to verily or to hold the said document to be genuine. Learned counsel has stated several reasons, which are also mentioned in the memo of writ petition that there was no question of said document having been issued either in fact or law. Learned counsel for Respondents No, 1 to 3 has supported the impugned order stating that it has been passed with lawful authority. Learned counsel for Respondent No, 4 Cooperative Society states that it had only sought verification of the document presented by Respondent No,
5. Mr. Muhammad Shahzad Shaukat, learned counsel for Respondent No, 5 urges that Respondent No, 1 in his capacity as Chief Settlement Commissioner was not bound to follow his own findings while sitting as Chairman of the Verification Committee.
He, however, has opined that even if fresh inquiry is required a panel of Notified Officers be constituted for the purpose.
4. I have gone through the copies of the records. For the order I propose to pass in this writ petition I will not be commenting upon the merits of the case i.e as to whether or not the said documents i.e PTO dated 27.12.60, PTD dated 24.5.62 and basic transfer order dated 23.6.60 are genuine or not.
However, I find force in the contentions of Mr. Muhammad Nawaz Kasuri, Advocate, that the Chief Settlement Commissioner as an entity had ceased to exist. Since there is no dispute that the property is urban in nature, I find that the Chief Settlement Commissioner was a creature of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Under Section 9 thereof Central Government was authorized to appoint a Chief Settlement Commissioner who was to discharge his functions and perform his duties under the general superintendence and control of the Central Government, of course, subject to provisions of the said Act while the other officers i,e, Settlement Commissioner etc. were to perform their functions and duties under the general superintendence and control of the Chief Settlement Commissioner subject to provisio'ns of the said Act and all the orders to be made by the Central Government in this behalf. Under Section 10 of the said Act, subject to provisions thereof and Rules made thereunder the Chief Settlement Commissioner or an Officer authorized in writing by him were competent to transfer or dispose of any property out of the compensation pool constituted under Section 4 of the said Act. By virtue of Section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, XV-1974 and later under Section 2 of the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975 several Acts including the said Displaced Persons (Compensation and Rehabilitation) Act, 1958 were repealed.
Under subsection (2) of Section 2 of the said Act 1975 all the proceedings pending before the authorities appointed thereunder stood transfer for final disposal to officers to be notified by the Provincial Government in the official gazette and similarly all cases to be remanded by the Supreme Court and High Court were to be remitted to the officers so notified. Chief Settlement Commissioner is not one of such Officers.
5. In the case of Province of the Punjab through Member Board of Revenue (Residual Prosperities)
Lahore and others v Muhammad Hussain through Legal Heirs and others (PLD 1993 S.0 147) a decree was passed ex-parte, inter alia, against the Government of Pakistan sued through Chief Settlement Commissioner, Board of Revenue Punjab, Lahore. An appeal filed against the said decree was dismissed and so was the case with civil revision filed in this Court. The appeal was filed by the Province of Punjab (through Member Board of Revenue (Residual Properties) Lahore). I need to mention that lawyers of such eminence as Mr. Zaki-ud-Din Pal, Mr. K.M. Samdani (senior Advocates) and Mr. Saleem Saghal appeared for Provincial Government. Inter alia, the plea taken was that the property in-question had vested in the Provincial Government under the said Act, 1975 and the Chief Settlement Commissioner no longer exists. It was, thus, observed by the Hon'ble Supreme Court of Pakistan in para 7 of the judgment at page 153 of the report:-- "Suing Pakistan, as was done in this case, through the Chief Settlement Commissioner and Member, Board of Revenue was in fact not only a mistake but a diversion of the proceedings materially affecting service and representation of the concerned defendants. The Chief Settlement Commissioner had ceased to be a legal entity or a functionary after repeal of the evacuee laws in 1974-much before the institution of the suit. Provincial Member, Board of Revenue could not represent Pakistan.
Similar is the position of Deputy Custodian. There was no functionary of the description of Deputy Custodian after the repeal of the evacuee laws."
I therefore, am in complete agreement with the learned counsel for the petitioners that there is no such entity as a Chief Settlement Commissioner under any of the statutory dispensation in force after repeal of the said Act 1958.
6. I also find that under Section 3 of the said Act, 1975 all properties which were available for disposal immediately before the repeal of the said Act or which become available for disposal after such repeal as a result of final order to be passed under Section 2 (3) of the said Act, 1975 shall stand transferred to Provincial Government for disposal, in case of urban property, by the Provincial Government under the scheme to be prepared by it in this behalf.
7. Vide order dated 20.2.07 an Officer exercising powers of Administrator (R.P) under the relevant scheme directed the disposal of the form of late wife of the petitioner after holding the property to be available. There is no appeal or revision or any other remedy provided against this order in the said Scheme framed in the year 1977. This order could have been challenged either before this Court in the constitutional jurisdiction or in a properly constituted civil suit. Nothing of the sort was done. The documents were examined by a Committee headed by the said Ch. Muhammad Zafar Iqbal and three other members and they observed that they are not in a position to give decision about the genuineness or otherwise of the PTD issued in favour of Khera because they cannot totally ignore the decision of the various Courts starting from Civil Judge to Hon'ble Supreme Court and Chief Settlement Commissioner and Notified Officer of the Settlement Department. The reference, of course, is to the fact that the record was examined at all forums and said documents were not present anywhere. They proceeded to submit the case to the Chief Settlement Commissioner Punjab. It was in the said capacity that Ch. Muhammad Zafar Iqbal deceased proceeded to hold the PTD to be genuine. The order is absolutely non-speaking. It fails to answer the questions arising from the circumstances established on the face of record in view of the history of the case, spreading over more than three decades prior to the consideration by Ch. Muhammad Zafar Iqbal.
8. Be that as it may, I have held that the Chief Settlement Commissioner is no longer an entity much less a legal entity. Even before the repeal of the said laws once transfer documents had been issued questions arising as to their genuineness were to be decided by the Civil Court.
9. This writ petition is accordingly allowed. The impugned order dated 7.12.2007 (Annex-PII) passed by Ch. Muhammad Zafar Iqbal deceased claiming himself to be Chief Settlement Commissioner is declared without lawful authority and is set aside. It will, however, be open to Respondent No, 5, if so advised to file properly constituted suit to establish the genuineness of the documents being relied upon by him. No order as to costs.
A copy of the judgment be immediately remitted to the learned Senior Member, Board of Revenue Punjab, Lahore.