' IJAZ UL AHSAN, J.---The main question involved in this petition relates to the price of a property measuring 6 kanals situated at 72-B, Model Town, Lahore that the respondents are requested to pay to the petitioner. It appears that the issue, regarding the persons entitled to own the property subject to payment of its price, was finally decided by this Court vide its judgment dated 30-4- 1997. However, the question of price payable by the respondents was kept open, which was to be decided by the Board of Revenue.
2. The learned counsel for the petitioner submits that the price decided by Mr. Anwar kill, Deputy Secretary (S&R Wing), Board of Revenue Punjab Notified Officer, was without jurisdiction. The case was neither pending before him nor had it been remanded to him in terms of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. He points out that the said officer passed an order under self assumed jurisdiction and was, therefore, without lawful authority.
3. The learned counsel for the petitioner argues that the price fixed by the Deputy Secretary/Notified Officer was determined on the basis of evaluation as defined in section 2(9) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The exercise of jurisdiction under the said Act was unlawful in view of the fact that the Provincial Government was entitled to receive the market price of the property in question in accordance with the law. He, therefore, argues that in exercising jurisdiction, which did not vest in him, the notified officer passed an illegal order which resulted in the Provincial Government being deprived of a substantial amount in terms of the market price of the property, which it was entitled to receive.
4. The learned counsel for the respondents has, in the first place, narrated the facts necessary for disposal of the case. He submits that vide order dated 9-12-1959, the then Deputy Settlement Commissioner held that the forms filed by Muhammad Aslam and Khurshid Ahmad, in relation to the disputed property, were not entertainable and the same were rejected. He held that the premises in question was a building site, was liable to be disposed of through public auction and could not be allotted to the claimants under the settlement laws. The aforesaid Muhammad Asian' filed an appeal before the Additional Settlement Commissioner. The appeal was dismissed on 21- 7-1960. A revision petition filed before the Settlement Commissioner was also dismissed on 30-3- 1962 as was the review petition vide order dated 20-4-1962. Muhammad Aslam filed Writ Petition No,2334-R-1962 while Khurshid filed Writ Petition No,362-R-1963, Both the aforesaid petitions were accepted on 29-9-1966. The judgment of this Court is reported as PLD 1967 Lahore 375. In the aforesaid judgment, the following points were determined:--
(i) The property was transferred as a house and not a building site;
(ii) The methodology for determination of price was mentioned in the judgment; and
(iii) The case was remanded for fresh decision by the Deputy Settlement Commissioner.
5. On 26-5-1967, Izhar ul Haq and Khushi Muhammad filed an application before the Deputy Settlement Commissioner to be impleaded as interested parties. Their application was rejected.
The Deputy Settlement Commissioner held that the house was an indivisible unit and ordered that the same be transferred to Muhammad Aslam. It is significant to note that he did not determine a price of the property. The said order was assailed before the Additional Settlement Commissioner by Izhar-ul-Haq, Khushi Muhammad and Khurshid Ahmad. The appeal of Izhar-ul-Haq and Khushi Muhammad was dismissed while that of Khurshid Ahmad was accepted. It was held that he was a direct allottee of the house, therefore, the property in question should be divided in two portions and allotted to Muhammad Aslam and Khurshid Ahmad in equal shares. It was further directed that out of the vacant land, three times of the plinth area may also be given to Khurshid Ahmad and Muhammad Aslam. The excess area was directed to be auctioned.
6. Izhar-ul-Haq and Khurshid Ahmad filed revision petitions before the Settlement Authorities. The revision filed by Izhar ul Haq was dismissed on 31-8-1968. However, the revision filed by Khurshid Ahmad was accepted and it was held that the garage being part of the property was liable to be transferred in his favour. It was further held that the excess area be distributed amongst Muhammad Aslam and Khurshid Ahmad in equal shares. It appears that Khurshid Ahmad filed another petition against the order of the Additional Settlement Commissioner holding the property as divisible. The said petition was dismissed on 13-1-1969. The Letter Patent Appeal filed by Muhammad Aslam was also dismissed on 20-4-1969. The civil petition for leave to appeal filed by Muhammad Aslant before the Hon'ble Supreme Court of Pakistan was also dismissed on 22-10- 1970. The record indicates that Izhar ul Hag filed yet another petition. This petition was directed against the order of settlement authority holding that he was not entitled to a share in the property.
The said petition was dismissed on 9-12-1968. However, the Letter Patent Appeal No,6 of 1969 was admitted to regular hearing.
' Subsequently, Khushi Muhammad filed Writ Petition No,7/R of 1969 before this Court. The Letter Patent Appeal and writ petition were accepted vide judgment dated 30-4-1997. It was held that the property was distributable in four equal shares. Consequently, Khurshid Ahmad, Muhammad Aslam, Khushi Muhammad and Muhammad Ismail, the successors of Elahi Bakhsh were held entitled to equal shares of the property. A site plan indicating each portion to which each of the parties was held entitled, was attached with the judgment. Subsequently, in view of the fact that the area was not correctly mentioned in the judgment, C.M. No,232 of 1998 was filed by the parties.
Vide order dated 12-10-1999. C.M. No,232 of 1998 was allowed and the requisite corrections were made.
7. On the legal plain, the learned counsel submits that the findings of this Court and the reasoning recorded in Writ Petition No,2334/R of 1962 and Writ Petition No,326 of 1963 having not been assailed by the Government of Punjab or any other party before any higher forum, have attained finality and cannot be challenged through this petition. He points out that in the aforesaid judgment, it was held that the property in question was a house and it cannot be urged at this stage that the property in question was a plot.
8. The learned counsel further argues that having been transferred as a house, the property in question had to be evaluated in accordance with the provisions of sections 2(8) and (9) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
9. The learned counsel has pointed out that Izhar ul Haq and Muhammad Aslam were 'claimants' while Khurshid Ahmad and Khushi Muhammad were "non-claimants" and had filed their respective forms under Scheme No,1 attached to the Displaced Persons (Compensation and Rehabilitation)
Act, 1958.
10. Paragraph-1 of the Schedule of the Act provides for "house in possession of the claimant which needs to be evaluated". The word 'evaluation' has been defined in section 2(9) of the Act to mean a house or a shop, the value of which in case of property situated outside of Cantonment Areas is to be determined at 40 times the Gross Annual Rent prevailing in 1946. The said criteria is available for valuation of properties by 'claimants'. As far as "non- claimants" are concerned, they may seek ownership on payment of the prevalent market value. The word "Prevalent market value" has been defined in section 2(8) of the Act to mean an amount or value of the property as determined by the Chief Settlement Commissioner.
11. According to the instructions, circulated vide letter dated 23-10-1959 by the Chief Settlement Commissioner, valuation for "non-claimants" had to be determined on the basis of an amount which was 15% above the value determined for claimants. This would essentially mean that the market value for the non-claimants would be the value determined for the claimants (40 times the Gross Annual rent prevailing in 1946) plus 15% of the said amount. The learned counsel for the respondent points out that the property was transferred in favour of Khurshid Ahmad and Muhammad Aslarn on 26-5-1967, which was much before the (Repeal) Act, 1975. As far as the cases of Khushi Muhammad and Izhar ul Haq are concerned, their cases were pending before the competent authorities much before the (Repeal) Act, 1975. He has pointed out that letter patent Appeal No,6 of 1969 and Writ Petition No,7-R-1969 filed by Khushi Muhammad and Izhar-ul-Haq were pending, before this Court much before the (Repeal) Act, 1975, which were decided vide judgment dated 30-4-1997 whereby the said persons were found entitled to portions of the property in dispute. As such, the case fell within the definition of "pending matters" which fell within the jurisdiction of the "Notified Officer".
12. The learned counsel for the respondent further contends that according to section 2(3) of the (Repeal) Act, 1975, all pending matters were to be decided in accordance with the relevant provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act 1959). In this regard, reference has been made to the case of "Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob" (PLD 2002 SC 5). In the said judgment, the Hon'ble Supreme Court of Pakistan held that if any proceedings had been taken prior to the (Repeal) Act, 1975, the matter shall be construed as a pending matter. He, therefore, argues that since the matter was pending prior to the (Repeal) Act, 1975, all subsequent proceedings had to be decided in accordance with the provisions of the Act, 1958 by the Notified Officer. He, therefore, submits that the case of the respondents clearly falls within the definition of a pending matter and the Notified Officer had the jurisdiction to decide the issue of price of the property.
13. The learned counsel has also drawn my attention to Paragraph-22 of the Settlement Scheme No,1 which obligates the Notified Officer to determine the price. He, therefore, argues that Mr. Anwar Jalil, Deputy Secretary (S&R Wing), who was admittedly the Notified Officer/Deputy Settlement Commissioner, at the relevant time, was not .Only authorized, but also under a statutory obligation to determine the price of the property which he did, in accordance with law. He referred to Notification dated 14-11-1974 to argue that under the evacuee property and Displaced Persons Ordinance, the Deputy Secretary, Board of Revenue enjoyed the power of a Notified Officer. In view of the fact that the matter was referred for the purpose of evaluation to the Board of Revenue by this Court, Mr. Anwar Jalil was within his powers to determine the price in accordance with law.
14. The learned counsel finally argues that the reasoning and orders of this Court, which have not been assailed before any forum cannot be agitated de novo. There is a specific bar against such exercise. Reliance has been placed on the case of "Ch. Zafar ul Haq and another v. The State" (PLD 1968 Lahore 437). The learned counsel, therefore, submits that the transaction is a past and closed transaction and cannot be agitated afresh at this belated stage, when the Government never agitated either the question of entitlement or valuation decided by this Court in the case of "Muhammad Aslam v. The Chief Settlement and Rehabilitation Commissioner, Lahore" (PLD 1967 Lahore 375). He, therefore, submits that the present petition is without merit and is liable to be dismissed.
15. The learned counsel for respondent No, 28 adopts the arguments made by the learned counsel for respondents Nos. 2 to 27.
16. Arguments heard. Record perused.
17. This litigation has a long and chequered history, a summary of which has been mentioned in the arguments of the learned counsel for the parties, reproduced above. The matter regarding entitlement of the respondents to the property in question was finally and conclusively resolved by this court vide its judgment reported in PLD 1967 Lah. 375, which was not assailed. Further, any outstanding issues that may have been left unresolved were settled through the judgment dated 30-4-1997 rendered by this Court in L.P.A. No,6 of 1969 where it was held as follows:-- "We, therefore declare the impugned orders passed by respondents Nos. 1 to 3 as without lawful authority and of no legal effect and also set aside tile impugned order dated 9-12-1968 passed by the learned Single Judge of the High Court. We, consequently, direct that the present appellants, the writ petitioners and respondents Nos. 4 and 5 are entitled to the transfer of the whole property in four equal shares as shown in the site plan annexed to this judgment and signed by us which shall form a part of this judgment. All the appellants shall be treated as one claimant and the writ petitioners to be another."
18. The only question that requires determination is whether respondent No,1 Anwar Jain, the then Deputy Secretary (S&R Wing), Board of Revenue Punjab/Notified Officer had the jurisdiction to evaluate and determine the price of the property payable by the respondents.
19. Admittedly, the question whether the property was a house or in the form of an open plot and whether the same was divisible, had been answered in Writ Petitions Nos.2334/R of 1962 and 326/R of 1963. The findings of this Court in the said petitions were not assailed by any of the parties before any forum and have, therefore, attained finality. It was held in the said judgment that the property in question was a house and it cannot be urged through this writ petition which was filed in 2006 that the property is a plot. Such plea cannot be raised at this belated stage after the matter has finally and conclusively been decided by this Court. The respective shares of the parties were also determined by this Court in its judgment dated 30-4-1997, which has attained finality.
20. The house in question was ordered to be transferred to the respondents as a house. As such, it was required to be evaluated in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
21. It is significant to note that Izhar ul Haq and Muhammad Aslam fell in the category of "claimants" and Khurshid Ahmad and Khushi Muhammad fell in the category of "non-claimants". All the aforesaid persons had filed their respective forms under Scheme No,1 under the Act of 1958.
22. The schedule to the Act of 1958 refers to a house in possession of the claimant. Section 2(9) of the Act of 1958 provides a mechanism for evaluation. In case a house was situated in areas, which did not fall within the Cantonment, the value of the said house was to be calculated at the rate of 40 times of the gross annual rent prevailing in 1946.
23. As far as non-claimants were concerned, they were also entitled to take evacuee properties provided they paid .The prevailing market value. The prevailing market value was defined in section 2(8) to mean the amount of value of the property as determined by the Chief Settlement Commissioner. The Chief Settlement Commissioner was to determine the value in terms of the guidelines provided in letter dated 23-10-1959. The guidelines envisaged that the prevailing market value of the evacuee property would be calculated on the basis of value of the property for claimants plus 15%. Over and above the said value. In terms bf Notification dated 14-11-1974, the Deputy Secretary Board of Revenue was granted the powers of a Notified Officer. Therefore, respondent No:1 not only had the jurisdiction, but also the criteria available to him under the relevant law for exercise of such jurisdiction to determine the price of the property.
24. The learned counsel for the petitioner has raised an objection that in terms of the Repealed Act of 1975, respondent No,1 had no jurisdiction to entertain and adjudicate upon the matter in view of the fact that he had been denuded of the jurisdiction available to him under the Displaced Persons (Compensation and Rehabilitation) Act of 1958. In this regard, a reference to section 2(2) of the Act XIV of 1975 can usefully be made, which provides that a Notified Officer may take cognizance of a matter, which was either pending before him or was remanded to him by the Hon'ble Supreme Court of Pakistan or the High Court. It is noticed that the entitlement of Khurshid Ahmad and Muhammad Aslam was determined and the property ordered to be transferred in their favour on 26-5-1967. This was much before the promulgation of the Repeal Act, 1975. Likewise, the cases of Khushi Muhammad and Izhar ul Haq were pending before the competent authorities much before the Repeal Act and their entitlement was finally decided on 30-4-1997 by this Court in L.P.A. No,6- 1969 and Writ Petition No,7 of 1969. In terms of section 2(3) of the Repeal Act, 1975, all pending matters were required to be decided in accordance with the repealed law. Since the case of the respondents fell within the definition of pending matters, there was valid and lawful basis to decide the same in accordance with the provisions of Act of 1958. Reference may usefully be made to PLD 2002 SC 5 where it was held that if any initial step prior to repeal had been taken, the matter shall be construed as a pending matter. In the instant case, since the matter of entitlement of the respondents/price of the property was pending prior to the repeal, the same fell within the definition of pending matters and was required to be decided in accordance with the provisions of the repealed law.
25. According to Paragraph-28 of the Settlement Scheme-1, A Notified Officer/Deputy Settlement Commissioner was authorized to determine the price according to Notification dated 14-11-1974, under the Displaced Persons Ordinance. In item No,6, it is clearly laid down that the Deputy Secretary (Rural), Board of Revenue shall exercise powers of the Notified Officer. In view of the fact that respondent No,1 was a Notified Officer at the relevant time and the matters relating to determination of price fell within the definition of pending matters, he had the jurisdiction to assess the said price in accordance with the criteria, methodology and parameters provided in law, which have been discussed above.
26. I find that the respondent No,1 exercised his powers validly and in accordance with law. The learned counsel for the petitioner has not been able to convince me that the Notified Officer exercised powers not vested in him or that in exercise of his powers he acted illegally or with material irregularity.
27. For what has been discussed above, I do not find any merit in this petition. It is accordingly dismissed.