' The for petitioners seek to challenge the order of the Deputy Settlement Commissioner, dated 30th March, 1974 and the order of the Additional Settlement Commissioner, dated 22nd May, 1974, confirming the aforesaid order of the Deputy Settlement Commissioner; on the ground that the same are not in conformity with the decision of the High Court in Constitutional Petition No, 594/61.
2. The facts leading to the filing of the instant petition are as under :- ' The dispute relates to the transfer of portion of plot No, G. R. E. 596, Jehangir Road, Karachi, in possession of the petitioners. The entire plot, which measures about 2653 sq. Yds has been in occupation of a large number of persons including the petitioners, each of whom raised permanent construction on the portion occupied by him. The Settlement authorities in the interest of all the occupants by order, dated 14th February, 1961, read with order, dated 4th October, 1961, decided that the plot should be transferred to such of the occupants who wanted to take it jointly.
However, the aforesaid decision was upset by the Deputy Settlement Commissioner's order, dated 2nd December, 1961, whereunder the plot in dispute was ordered to be disposed of by public auction, on the ground that some of the occupants had refused the proposed joint transfer. The for petitioners mentioned in C. P. No, 594/61 then filed writ petition naming the Settlement and Rehabilitation Commissioner, Karachi, the Deputy Settlement Commissioner, Centre D', Karachi and 28 occupants in possession of portions of Survey No, 596 as respondents. The petition was not defended on behalf of respondents Nos. 3 to 29 on whose behalf Mr. Akhtar Mahmud, their counsel submitted that they were willing to have joint transfer of the plot in dispute. The impugned order was quashed and the. Deputy Settlement Commissioner, was directed to "transfer the plot in dispute to the petitioners and such occupants who are willing to have joint transfer of the plot in dispute and apportion the price according to the portion in their possession,-
3. In pursuance of the directive, the Deputy Settlement Commissioner, passed the order, dated 5th February, 1964. Since however, several occupants of the plot who wanted transfer of their respective portions, were ignored, an appeal was filed before the Additional Settlement Commissioner (Judicial) who by his order, dated 16th November, 1966, set aside the order of the Deputy Settlement Commissioner, and declared that all the occupants concerned who were willing to take joint transfer, should be given opportunity to take transfer of their portions. The aforesaid order of the Additional Settlement Commissioner, was challenged in revision and the Additional District Judge and Settlement Commissioner, Karachi, after hearing the parties passed an order, dated 20th September, 1966, holding that in cases of the respondents, who had died, the areas occupied by them should he transferred to their legal heirs and those occupants, who had transferred the areas in their occupation, were not to be considered for transfer of the same and the areas in question should be given to applicants and not to fresh occupants. The learned Settlement Commissioner, further held that since the applicants before him had paid the full price of the entire land the occupants desirous of joint transfer should either pay the price of their portions in cash or by making entries in their compensation books in favour of the applicants.
4. The aforesaid order of the Settlement Commissioner Karachi, dated 20th September, 1966 was challenged in Petition No, 92167. Two legal contentions were raised before the High Court; firstly that the Settlement Commissioner, was not competent in law to interfere with the order of the Additional Settlement Commissioner, Karachi,' since after promulgation of Ordinance X111 of 1964, his powers were limited to cases in which order was passed by his subordinate, relating to the entitlement of a person to the transfer of a property or to a matter involving title and, secondly that the learned Settlement Commissioner was not specially empowered to hear revision application under section 20 (3) of the Ordinance. Both the contentions were rejected and it was held that there was no force in the petition which was dismissed with costs by order, dated 26th February, 1970. A Letters Patent Appeal (No, 59/70) was filed against the aforesaid decision and was decided by order, dated 22nd April, 1970 by which the appeal was dismissed. The L. P. A. Was filed on behalf of the same 28 persons who were respondents in Writ Petition No, 594/61 including Muhammad Saeed, son of Abdul Majid, Muhammad Umar, son of Muhammad Din and Bundoo, son of Kaloo.
Petitioners 1 and 2 namely, Zahoor, son of Bundoo and Shabbir, son of Bundoo in the instant petition are sons of Bundoo, son of Kaloo deceased. Muhammad Umar, son of Din Muhammad and Muhammad Saeed, son of Abdul Majid who are petitioners 3 and 4 are the same persons who are respondents in Writ Petition No, 594/61. The respondents in the L. P. A. Were the persons who were petitioners in Writ Petition No, 294/61 except that respondents 1, 2, 3 and 4 are the sons of Habibur Rebman who had died.
5. It was argued in the L. P. A. That the two directions of the Settle. Meat Commissioner, namely :--
(1) That the plot should be transferred to such of the occupants who have not left the property already, and
(2) That the price should be paid by other occupants to the respondents directly in cash, or these occupants should have the entries in their compensation books transferred to and in favour of the respondents, were contrary to the directions of the High Court in Writ Petition No, 594/61. The contentions were not accepted and it was observed as under :- "We are unable to accept this proposition. When the High Court said that the plot in dispute should be transferred to such occupants as are willing to have joint transfer of the land, it implied two things. Firstly, the direction implied that the plot should be transferred to persons who are in fact willing to take the transfer and accordingly such persons who have left the possession of the plot may not be deemed to be the persons willing to take transfer of the plot. Secondly, the direction implied, of necessity, that transfer should be made to such occupants as were in actual occupation on the target date. These were the necessary implications of the order of the High Court. As regards the second direction of the Settlement Commissioner, it is agreed that the whole price of the plot had been paid by the respondents perhaps through compensation books which they acquired by agreement of association."
' The contention that the appellants should have been directed to pay the price to the Settlement Department and not to the respondents, was not accepted. It was further observed as under :- "We think that the Settlement Commissioner made a concession in the appellants' favour by directing that this price may be paid either by cash or through transfer of entries in the appellants' compensation books to and in favour of respondents."
6. After the decision of the L. P. A. The Deputy Settlement Commissioner, Karachi, took up the matter which he had been directed by the Settlement Commissioner to decide and passed an order, dated 12th July, 1971. He interpreted the orders of his superior and the High Court decision in L. P. A.
To mean that the transfer should be made to such occupants as were in occupation. He further held that the whole price of the plot had been paid by respondents through their compensation books and therefore, the applicants, who were occupants of the plot in dispute, were entitled to the transfer of the areas of the portions of the plot in their possession and that the price should be paid by them to Messrs Fakhruddin and others directly in cash, or those occupants should have the entries in the compensation books transferred to and in favour of Messrs Fakhruddin and others.
The order was again challenged in appeal before the Additional Settlement Commissioner who passed an order, dated 13th November, 1972. The learned Additional Settlement Commissioner, before whom it was argued that the Deputy Settlement Commissioner in the impugned order while attempting to clarify the order of his superior and that of the High Court had given a new meaning other than that intended by the High Court; did not accept the allegation as completely true and held that occupants mentioned in the order of the Deputy Settlement Commissioner should not be taken to mean the occupants who had occupied the plot after the target date and the transfer should be made to such occupants as were in actual occupation on that date. With the aforesaid remarks he upheld the order of the Deputy Settlement Commissioner. The Deputy Settlement Commissioner again took up the matter in \pursuance of the aforesaid order of the Additional Settlement Commissioner. In the impugned order, the Deputy Settlement Commissioner held that Shabbir Ahmed and Zahoor, sons of Bundoo, 'presently petitioners 1 and 2 in the instant petition were not entitled to transfer inasmuch as they had left Karachi and settled at Multan. With regard to payment of price, it was directed that occupants who were not claimants, should pay the price of their portions in cash.
7. In challenging t he impugned orders the following contentions have been raised on behalf of the petitioners :-
(1) That the orders of the High Court in Writ Petition No, 594161 and L. P. A. No, 59/70 have been misinterpreted in the case of petitioners 1 and 2, in that they were in occupation of portions of the plot on the target date.
(2) That the finding of the Deputy Settlement Commissioner that petitioners I and 2 have left possession of the plot and have settled at Multan is based on misconception of the evidence.
(3) That since petitioners 3 and 4 had already paid the price by adjustment in the claim compensation books of associated claimants, the transfer entry in the same compensation books is to be ,made in favour of persons having paid the price originally.
8. With regard to grounds 1 and 2, the order of the High Court in Writ Petition No, 594/61 was clearly to the effect that plot in dispute was to be transferred to the petitioners (who are shown as respondents in L. P. A. 59/70) and such occupants, who are willing to have joint transfer of the land.
Petitioners 1 and 2 claim in the right of their father Bundoo, son of Kaloo deceased who was respondent No, 15 in the Writ Petition. The order of the High Court mentions that the respondents were all willing to have joint transfer of the plot in dispute and took such a plea before the Court.
The decision in L. P. A. 59/70 also mentioned Bundoo, son of Kaloo as one of the appellants. It was observed in that decision that the irections of the High Court in Writ Petition No, 594/61 implied that ransfer should be made to such occupants as were in actual occupation on the target date. The order of the High Court was explicit that the transfer of the plot in dispute was to be made to the petitioners and such occupants who were willing to have joint transfer and as already stated, Bundoo, son of Kaloo was included in those persons who had shown willingness to have joint transfer of the plot in dispute. The condition about the occupants who were willing to have joint transfer can only apply to such persons who being occupants were not parties before the High Court. The question as to whether petitioners 1 and 2 had left Karachi and settled at Multan is a question of fact based on mere assertion and in these proceedings this Court cannot go into such matters concerning facts.
9. With regard to ground No, 3 the directive of the Deputy Settlement Commissioner that occupants who are not claimants should pay to the respondents directly in cash, has been challenged in these proceedings. He grievance of petitioners 3 and 4 is that they are being required to pay cash to respondents. In the initial order of the High Court in Writ Petition No, 594/61 the directive is that the Settlement Authorities should transfer the plot in dispute and apportion the price according to the portion in their possession. The mode in which the payment is to be made was not mentioned.
In the decision of Writ Petition No, 92/67 it was held that if the directions had been made to the effect that transfer price payable by petitioners should be in a particular manner so that instead of making deposit with the Settlement Authorities, the relevant book entries in the Department may be maintained and the respondents 2 to 3 accordingly compensated for the payment made to the Department, the order could not be said to have been passed without lawful authority. In the decision of L. P. A. No, 59/70 with regard to the same direction of the Settlement Commissioner, it was observed that since it was agreed that whole price of the plot had been paid by the respondents perhaps through compensation books which they acquired by agreement of association, the contention that the payment should have been made to the Settlement Department and not to the respondents was not acceptable. It was further observed that the respondents had made payment of whole price and it is they who are entitled to receive the price of such portions of the plot as are transferred to other occupants. The order of the Settlement Commissioner, therefore,) was considered as a concession in the appellants' favour by directing that the price may be paid either in cash or through transfer of entries in the appellants' compensation books to and in favour of the respondents.
10. It has been argued by Mr. S. M. Raza, the learned counsel for the respondents that compensation hooks were being purchased at much less than the face value and therefore, the respondents who had paid the entire price should get back part of the same in respect of the portion of the plot transferred. In view of the fact that there was no specific method of payment of the price laid down in the order of the High Court and also in view of the fact that in the decision of the L. P. A. The reference was to "their compensation books" which only claimants have and not compensation book purchased by them. The contention that the impugned order is not in consonance with orders of the High Court cannot be accepted.
11. The impugned order of the Deputy Settlement Commissioner, dated 30th March, 1974 and the order of the Additional Settlement Commissioner (Judicial), dated 22nd May. 1974 so far as the same rejected th claim of petitioners 1 and 2 are therefore, hereby quashed and it is directed that the portions in occupation of the aforesaid petitioners on the target date viz. 20th December, 1958, be transferred to them. The petition is allowed to that extent and under the circumstances there will be no order as to costs.