WAHEED AKHTAR ANSARI, MEMBER (JUDICIAL-III).---An application for summoning the record, fixing the date and hearing of said case was filed by the applicant through holder of special power of attorney Shahid Hafeez Malik on 16-5-2011, contending therein that RP Form filed by him for payment and issuance of transfer deed for transfer of a portion of flat comprising an area measuring 9172-Sq ft on first floor of property No. S-19-R-68 known as "Gyan Mansion", the Mall, Lahore is still pending for disposal. The applicant, relying upon the order dated 30-7-1983 of Deputy Settlement Commissioner, mentioned that he was in occupation of a portion of residential flat area measuring 9172-Sqft. On first floor of property No. S-19-R-68 know as Gyan Mansion, the Mall Road, Lahore. Learned counsel further contended that entire property No.S-19-R-68 known as "Gyan Mansion" the Mall Road, Lahore was previously owned by "Bharat Insurance Company". The said property was composite building comprising shops, a Hall and residential flats etc. The applicant and other occupants inadvertently kept paying rent to State Life Insurance Corporation under the impression that the said property was an "Enemy Property". Subsequently, it transpired to the applicant that the said property is an evacuee property and the same is available for disposal under a scheme framed under section 3(a) of Evacuee Property and Displaced Persons Laws (Repeal) Act, (XIV) 1975. The applicant filed application for transfer of the portion in his occupation on prescribed form before the Deputy Administrator under the relevant Scheme, 1977. The Deputy Administrator (R.P) after considering the objections of State Life Insurance Corporation, vide his order dated 30-7-1983 accepted the "form" of the applicant. Against this order, the State Life Insurance Corporation filed several revision petitions before the Administrator (R.P). But the same were dismissed vide order dated 14-2-1984. The State Life Insurance Corporation filed Writ Petition No.170-R-1984 etc against the said order, but the same was dismissed vide judgment dated 6-10- 1995 by Hon'ble Lahore High Court Lahore. Concludingly, it was contended that the applicant is entitled for the transfer of the portion under his possession in pursuance of order dated 30-7-1983 passed by Deputy Administrator (R.P.), as the same has attained finality.
2. From the above, it reveals that the instant case falls under the scheme for Management and Disposal of Available Urban Evacuee Properties of 1977. Hence, the applicant was provided a check list performa prepared for scrutinizing the cases falling under such scheme to have his input.
Following is the detail of information provided:-- Sr. No. Requirements Answer with Documentary evidence
1. Name of the applicants(s) with percentage, caste and permanent address.Malik Muhammad Pervaiz son of Muhammad Akram r/o 57-Mall, Road Lahore.
2. Particulars of House/shop/building site, industrial concern and cinema houses, which the transferee applied for by mentioning, property No. detail of Constructed area, open space with exact measurement , detail of revenue record including khasra, khatuni and Khata No. with proof of relevant revenue record of the name of mauza concerned.S-19-R-86 Gyan Mension, mall Road, Lahore flat/first floor of the above property.
3. Name of evacuee owner. Bharat Insurance Co.
4. Whether the applicant filed RP from within prescribed period as provided under the scheme?Yes.
5. Whether the applicant was entitled to retain property at evaluation price as per paragraph No. 6 of the scheme.?Yes.
6. Whether the applicant was eligible for filing of RP Forms?Yes.
7. Whether the Property in question is resumed one, if so, what is the date for submission of RP Form?No.
8. Whether the Property was attached or reserve for anyNo. charitable religious or Educational Trust?
9. Whether the applicant held any other evacuee property at the time of purchase of the Property in Question? If so, the detail of the said property is available or not?No.
10. Whether the transfer price was determined as required under the scheme?No.
11. Whether transfer price, rent and Public dues has been paid by the applicant or not?No.
12. Whether the above Government dues were deposited by the applicant within time or not?Yet not Determined.
13. Whether the transfer order was passed by the competent authority.Deputy Administrator on 30-7-1983.
14. Whether the above transfer order in favour of the applicant was challenged by anyone? If, so whether the case was decided in favour of the applicant?Writ Petition No. 170-R-84 etc. dismissed on 6-10- 1995
15. Whether the Present applicants(s) has direct or indirect relation with the Original applicant?Legal Heirs
17. Whether the gardens and Grounds attached or appurtenant to evacuee residential premises do not exceed approximately three times the plinth area of the house including garages out-houses?Not applicale
3. The relevant file as mentioned in the application was summoned from record room and the same was presented on 19-5-2014. The perusal of such file shows that nothing is available in this file in respect of present applicant rather the file is irrelevant as far as the present applicant is concerned .
4. I have considered the arguments advanced by learned counsel for the applicant, perused information provided by him. It reveals from the available record that the present petitioner being one of owner of firm named Shems International Corporation Ltd. Was occupant of a portion of flat situated at the first floor of the property known as "Gyan Mansion" and submitted "R.P. Form" for allocation of such property in his name in terms of Scheme for Management and Disposal of Available Urban Properties published vide Gazette Notification dated 13th January 1977 (at page A/67 to 91). After processing of such form, the said property was allotted to the present applicant vide order dated 30-7-1983 passed by Deputy Administrator (RP), Lahore (at page A/07 to 29), which reads as under:--
(10) "Residential Portion.
' It is a flat marked F/1 in the site plan. It is situated on the first floor of the suit property consisting of two rooms and terrace. It is in occupation of a firm known as "Shems International Ltd". The firm has filed R.P. Form No.DSC/1/LHr/77/6164, for its transfer through one of the partner namely Pervaiz Malik.
The Firm is in possession of portion of the property before target date. This flat is, therefore, transferred to the Firm noted above Subject to their RP.Form No.6164 " .
5. Against this order, the State Life Insurance Corporation filed several revision petitions before the Administrator (RP) but the same were dismissed vide order dated 14-2-1984. The operative part of the order is as under:-- "The Dy. Administrator (RP) even sought the advice of learned legal advisor (Urban) Mr. Shahzad Jahangir and that also supports the view. The contention of the counsel of the appellant that Bharat Insurance Co. Ltd. Had its registered office in India before 15-8-1974 is falsified from their own letter dated 13-2-1969 addressed to the Secretary West Pakistan Enemy Property Management Board, Lahore wherein in para 8, it has clearly been stated that since after independence the Bharat Insurance Co. Office was shifted to Delhi from Lahore. The company in the first instance was treated as evacuee by Pakistan government and this property was also treated as evacuee vide case No.264 of 1948. The custodian of evacuee property held the company as non-evacuee and ordered the restoration of the property on the conditions that the company carried on its usual business in Pakistan and this clinches the matter to the effect that even after 15-8-1947 Bharat Insurance company registered office existed in Pakistan. So the authorities referred to above by the counsel of the appellant are not applicable in the instant case.
In view of the above discussion, the impugned order appears perfectly justified and calls for no interference. The net shell, therefore, is that the above- mentioned revisions are rejected".
6. Feeling aggrieved, the State Life Insurance Corporation filed Writ Petition No.170-R/1984 etc in the Lahore High Court, Lahore. The same was dismissed, Vide judgment dated 9-4-1995 (at pages A/31 to 51). The relevant paras Nos.10 and 13 of the judgment is as under:-- "Para-10: "On the basis of elaborated interpretations the Deputy Administrator concluded that the property in dispute was an evacuee property and transferable in favour of the respondents. No material was placed before the said officer to show that the registered office of Bharat Insurance Company was situated in India before the 15th day of August, 1947 or continued to be so situated after the said date. This was a primary consideration which weighed with the Deputy Settlement Commissioner for transferring property in dispute in favour of various occupants who have been duly settled permanently".
Para No.13. "If as admitted by the applicant the business of Bharat Insurance Company was Nationalized by the Indian Government it would not then fall within the purview of section 15 because in that case there was no such business to be taken over or vested as envisaged under subsection (1) of section 15 of the life Insurance (Nationalization) Order, 1972. The issue has been fully thrashed out and I do not find any legal infirmity in the impugned order. "Resultantly, there is no merit in all these writ petitions which are dismissed, however, without any order as to costs".
7. This order was not challenged further and so attained finality. The implication of such finality is that the order passed by Deputy Settlement Commissioner dated 30-7-1983 held ground. The perusal of such order confirms that pre-requisites for passing such an order like submission of RP.
Form, possession of applicant etc. Have been fulfilled. After passing of such an order, the applicant was supposed to deposit the government dues. But, it could not happen due to litigation which culminated vide order of Hon'ble Lahore High Court dated 9-4-1995 in favour of the applicant. Even then, it could not happen. Now the question arises that if the impugned land is to be transferred and final title document is to be issued in favour of Shems International Corporation through the applicant, what would be procedure for assessment of transfer price of the impugned property.
The relevant provisions as provided in Chapter-I, para (L)(i & ii) of the scheme ibid are as under:-- (i). In case of a house or a shop situated within the limits of cantonment or constructed on land which was not evacuee property, an amount equal to 40 time the gross actual rent of such house or shop, as the case may be, prevailing in 1946;
(ii) In any other case, an amount equal to 60 times of such rent;
8. The above provision is silent about a situation like the present one, where assessment has not been made at proper time. As earlier mentioned that the dispute in respect of the impugned property was finally settled by way of judgment dated 9-4-1995 of the Hon'ble Lahore High Court, Lahore. In year 2011, the applicant came up with the contention that his application is pending before this court for payment and issuance of Transfer Deed and requested that same may be finalized. But no relevant record is available at present. The contention of the applicant regarding pendency of application cannot be ruled out straightway as the order passed by Deputy Administrator (RP) Lahore, dated 30-7-1983 Administrator (RP) dated 14-2-1984 and Hon'ble Lahore High Court, dated 9-4-1995 shows that the matter was pending and further proceedings must have been held after the passing of order of Hon'able Lahore High Court. The application cannot be penalized totally for this lapse as there is no record available which could show what happened afterwards. The file was misplaced from the office. The application moved not earlier than year 2011, which should have been done just after passing the order of Hon'ble Lahore High Court.
9. For the purpose, a reported judgment dated 25-5-2010, passed in Writ Petition No.82-R-2006 by Hon'ble Lahore High Court, Lahore was perused. The relevant paras 25 to 27 reads as under:--
25. According to Paragraph-2/8 of the Settlement Scheme-I, 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".
10. For the purpose, a recently Case No.23-R/2010 decided on 5-6-2014 by Hon'able Lahore High Court, Lahore, concerning the issue was consulted as well, which reads as under:-- "The price was fixed through letter dated 26-12-2002 still will not be applicable for the petitioners. In order to get benefit of such letter, the petitioners had to apply for purchase of land before 30-6- 2003. The petitioners may be in possession of the land in question since 1972 as pleaded by them but the date of possession is not at all relevant to determine the market price of the land rather it is a date of submission of application intimating the intention to exercise option for the purchase of the land. Even otherwise, the petitioners are stopped by their conduct to claim fixation the price of land other than market price, for, they themselves have agreed to purchase the land in question by marking payment at market price before this Court on 26-3-1991 as referred herein above and compromise deed (mark-CI) was signed or thumb marked by all the petitioners which is available in the record of W.P. No.67/R/ 1988".
11. The proposition in the above referred case is not exactly similar to the instant case, however, it provides guideline to deal with the issue. The benefit of assessment of price according to an earlier notification of the department instead of current market price was denied on two following counts:--
(i) The request was for purchase of excess area.
(ii) The request for the purchase was not made within stipulated time.
12. In the instant case situation is different, the request is not for purchase of excess area and the petitioner not only applied for purchase of land within stipulated time rather the case was finalized and property was ordered to be transferred in favour of the petitioner in year 1983. In this view of the matter, as per guideline provided by the above judgment, the petitioner is entitled for the benefit of the price assessm ent mechanism provided in the Chapter (I) of the Scheme for Management and Disposal of Available Evacuee Urban Properties of 1977. The matter was further thrashed in view of a situation of delayed payment, which might occur in the instant case, the settlement laws are silent about the issue but a memorandum issued under Land Settlement Act, 1958 vide No.2664-62/2352-5(G) VI dated 7-8-1962 addresses such like situation. The relevant part is reproduced as under:-- So far as the last date for the payment of the first instalment is concerned it was originally fixed at 31st March, 1962, on their representation it was extended to the 30th June, 1962 with the approval of the President of Pakistan. Now there is no reason why the period of the first instalment, which was due on the 30th June, 1962, should be extended to the 31st December, 1962, if there is default in payment of one instatment, the purchaser is not straight away liable to ejectment but he can pay it subsequently at 9% penal interest".
13. In view of the above facts, circumstances and analysis of this case, and in the interest of justice, the request of the applicant for issuance of transfer deed in respect of the impugned property is hereby accepted at the rate to be calculated in terms of para (L)(i & ii) of Chapter-I of the Scheme for Management and Disposal of Available Urban Evacuee Property of 1977 with 40% penalty due to delay in payment of government dues regarding the impugned property. After calculation of price with penalty, Secretary (S&R) is directed to issue challans for depositing the said amount under head No.G-11226 "Deposits in favour of the Chief Settlement Commissioner, Punjab". After verification of said deposited amount, Transfer Deed shall be issued in favour of the applicant, transferee, i.e. Shems International through Malik Pervaiz.