' This order will dispose of Writ Petition No, 750/R/75 and Writ Petition No, 1260/R/1977 as these relate to same property.
2. Facts leading to these Constitutional petitions are that Sardar Sajan Singh, an evacuee, was an owner of a big bungalow spread over 10 kanals of land bearing property No, 4/918 and of an adjacent property No, 4/919 shown as a shop in the Excise and Taxation record of the year 1946. Ch. Abdul Ghani Ghumman filed a plot form for transfer of the bungalow bearing property No, 4/918 on the ground that the bungalow was a burnt house. The Deputy Settlement Commissioner noticed various amounts verified from time to time for the repair/re-building of the bungalow. He transferred the bungalow to Ch. Abdul Ghani Ghumman under Settlement Scheme No, VI. He, however, observed that "I would like to make it clear that the bungalow also includes shop No, 4/919 on the road-side which is separately assessed at Rs, 54 P.A. And has not been claimed or transferred alongwith the bungalow. The same will be disposed of independently in the light of instructions on the subject." This is vide order dated 13-1-1971. For. This property, viz. 4/919, Ch. Abdul Ghani Ghumman had earlier filed a' LH form which had been rejected. Against the order of the Deputy Settlement Commissioner dated 13-1-1971, Ch. Abdul Ghani Ghumman filed an appeal which was treated as a revision because of change in the law and the learned Settlement Commissioner observed that "Before taking up the revision petition on merits the learned counsel for Ch. Shehzad Ghani urged dismissal of the revision, petitions of Ch. Abdul Ghani Ghumman as according to him they were barred by time. The learned counsel for Ch. Abdul Ghani Ghumman frankly conceded that revision petition No, 56/SLK/1971 was barred by time having been brought on 19.4-1971 against the order passed on 13-1-1971. Consequently, the above revision petition where- through Ch. Abdul Ghani Ghuman had claimed unit bearing No, 4/919 as part and parcel of bungalow No, 4/918 fails" .This is vide order, of the Settlement Commissioner dated 30-6-1976, Ch. Abdul Ghani has filed Constitutional petition No, 1260/R/1977, on 25-6-1977 challenging the orders of the learned Deputy Settlement Commissioner dated 13-i-1971 and of the learned Settlement Commissioner dated 30-6-1976.
3. This petition is liable to be dismissed for a variety of reasons firstly, the petitioner had filed L H form for this property which was rejected and, thereafter, the petitioner did not pursue the matter.
Secondly in pursuance of the order of the D. S. C. Dated 13-1.1971, the property was auctioned on 26- 3-1971. The petitioner did not challenge the auction in any proceeding. Thirdly, his revision petition against the order of the learned Deputy Settlement Commissioner dated 13-1-1971 had been filed on 19-4-1971 and having been conceded to be barred by time was accordingly dismissed by the learned Settlement Commissioner on 30-6-1976. Learned counsel for the petitioner has submitted that no such concession was made and the appeal though out of time was treated as a revision, there being no limitation for a revision petition, the revision petition should not have been dismissed as barred by time, Besides that originally the petitioner had filed an appeal which was barred by time though on account of change of law that was treated as a revision but that did not extend the period of limitation. Still, even in matter of revision petitions, there have been instructions issued by the Chief Settlement Commissioner and practice followed that the revision petitions be filed within a period of 15 days. Although the instruction or the practice would not affect the statutory provisions but a revision petition would be liable to be dismissed if the order under revision was not challenged within a reasonable time and it was open to the learned Settlement Commissioner to refuse to entertain the revision petition which had been filed after unjustifiable delay. Consequently, the order of the learned Settlement Commissioner rejecting the revision petition on the ground of limitation, which fact had been conceded before him, cannot be challenged in these proceedings.. More important aspect of the case is that the petitioner has already been transferred a big bungalow spread over 10 kanals of land on the basis of being burnt house on a plot form under Settlement Scheme No, VI. For burnt properties, there are instructions of the Chief Settle. Ment Commissioner for their disposal and the disposal is always made under Settlement Scheme No, I. No more need be said in this behalf. But the petitioner, being a local and having been transferred the bungalow as a burnt house, which should have been under Settlement Scheme No: I, he would be ineligible for transfer of another property under para. 3 of the Schedule of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The petitioner, a local, having already been transferred a big bungalow spread over ten kanals, should feel satisfied with the transfer and he has no justification to ask for the adjacent property which is, the disputed, property having been separately assessed prior to Partition. Moreover, the impugned order of learned Settlement Commissioner was B passed on 30.6-1976 and copy obtained on 18-8-1976 but the writ petition was not filed until 25-6-1977. Thus, it is delayed by nearly a year and there is no explanation. Therefore, it is liable to be dismissed on the ground of laches and inordinate delay. For all these reasons, the Constitutional petition filed by Ch. Abdul Ghani Ghuman, has no focce or merit and is accordingly dismissed with costs.
Writ Petition No, 750/R/75 ' This petition has been filed by Shukar Din, who was at one time a peon of Ch. Abdul Ghani Ghuman when the later was a Chairman of the District Board. On the recommendation of Ch. Abdul Ghani Ghuman property bearing No, 4/919 was allotted on 28-8-1950 to the petitioner Shukar Din under No, 4/919-A but its correct No,. Is 4/919 as per extract from the original record of the Excise and Taxation. However, it appears that the allotment from the name of the petitioner Shukar Din was cancelled by the Additional Settlement Commissioner on 23-1-1951 but on the revision of Ch. Abdul Ghani Ghuman the then occupant agreed to vacate the premises on being given an alternate accommodation. He, accordingly, vacated the premises and the possession, was delivered to Ch. Abdul Ghani Ghuman. However, At is undisputed position that Shukar Din petitioner got the possession of the property and has been in possession. The case of Ch. Abdul Ghani Ghuman, respondent No, 3, has been that the petitioner 'Shukar Din has been in possession as his servant, but it is established fact that long ago Ch. Abdul Ghuni Ghuman had vacated the office which he held in which Shukar Din was a. Peon and that Shukar. Din has remained in possession of the property. Shukar Din filed a form under Revised Settlement Scheme No, VIII on 29-1-1974 for transfer of the property in his possession, bearing No, 4/919. When it was taken up by the Deputy Settlement Commissioner, litigation was going on between Shehzad Ghani, son, and his father, Ch. Abdul Ghani Ghuman, and the learned Settlement Commissioner had issued a stay order. The Deputy Settlement Commissioner, therefore, deferred the case and deleted it from the list of pending cases. However, Shazad Ghani son of Ch. Abdul Ghani Ghuman appeared before the Deputy Settlement Commissioner and he stated that he had purchased the property in dispute bearing No, 4/919 in auction although the auction had not been confirmed because of the litigation above mentioned. The learned Deputy Settlement Commissioner observed that since the property had been auctioned, form filed by Shukar Din petitioner under Settlement Scheme No, VIII was not worth consideration. This is vide order dated 9-5-1974. This order has been challenged by Shukar Din, petitioner in Writ Petition No, 750/R-1975.
5. Learned counsel for the petitioner has contended that Shukar 'Din, petitioner, is a refugee from Jammu and Kashmir, and property having been in his possession was exempt from disposal except under 'Settlement Scheme No, IV in favour of Jammu and Kashmir refugees. It is submitted that though on the recommendation of Ch. Abdul Ghani Ghuman the property was allotted to the petitioner on 28.5-1950 and on vacation by another person possession may have been delivered to Ch. Abdul Ghani Ghuman, but the allotment in favour of the petitioner was never cancelled in any proceedings in which the petitioner was a party, nor did he ever leave the possession after he got it. Secondly, the possession obtained by the petitioner was when the petitioner was a peon in the office of the Market Committee and the Chairman was Ch. Abdul Ghani Ghuman but that did not mean that even after Ch. Abdul Ghani Ghuman had vacated the office, the possession of the petitioner would enure for the benefit of Ch. Abdul Ghani Ghuman. The petitioner remained in possession throughout and was in possession on the target date in his own right. Therefore, the auction held on 26-3-1971 was void and illegal altogether. He has placed reliance on Hussain and another v. Settlement Commissioner and another (1). In any case, it has never been confirmed. h is also contended that the order of the Deputy Settlement Commissioner is illegal for the reason that when the form of the petitioner for tranfer was taken up, the Deputy Settlement Commissioner, in view of the stay order by the Settlement Commissioner, deferred the case and directed that the case be deleted from the pending cases, but on the appearance of Shehzad Ghani Ghuman son of Ch. Abdul Ghani Ghuman, the petitioner's form was rejected and that too with out proper application of the mind to the facts of the case that the property was untransferable to any other person than refugees from Jammu and Kashmir.
6. Learned counsel appearing for Ch. Abdul Ghani Ghuman reasondent No, 3, has strenuously opposed the writ Petition and contended that the possession of the petitioner was that of a licensee because he was there as a servant of Ch. Abdul Ghani Ghuman who was an allottee and to whom possession had been delivered. It was, secondly, contended that the property in dispute No, 4/919 is a servant quarter of the bungalow No, 4/918 transferred to Ch. Abdul Ghani Ghuman.
This being so, the petitioner has no right to maintain this Constitutional petition.
(1) PLD 1969 Lab. 1039
7. Nobody appears on behalf of Shehzad Ghani son of Ch. Abdul Ghani Ghuman, respondent No, 2, inspite of notice. May be it is on account of the fact that the son and father previously litigating about he bungalow No, 4/918 and having composed their differences by withdrawing the writ petition against each other, the son has taken it that the father who is claiming the property in dispute No, 4/919 as part of property No, 4/918, the bungalow, would be quite enough to contest the writ petition. Whatever the position may be, the auction in favour of Shehzad Ghani having not been confirmed has created no rights in his favour. Moreover, the auction itself had been ordered to be held by the Deputy Settlement Commissioner vide his order dated 13-1.1971 without examining the facts of the case as regards possession of the property and its availability for transfer. If the Deputy Settlement Commissioner had examined the case, he would have realised that the property in dispute being in possession of a refugee from Jammu & Kashmir, it was not liable to be transferred except to a Jammu & Kashmir refugee under Settlement Scheme No, IV and, in any case, he would have, as required by law, issued a notice to the present petitioner, namely, Shukar Din and afforded him -0 an opportunity of being heard which admittedly was never done. The contentions of the learned counsel appearing for Ch. Abdul Ghani Ghuman that the property in dispute No, 4/919 is a part and parcel being a servant quarter of the bungalow No, 4/918 is belied by the conduct of Ch. Abdul Ghani Ghuman himself when he filed a L H form for it separately.
Secondly, the two properties are separately assessed since before partition. Moreover, he having been found to be not entitled to it by dismissal of his own Writ Petition No, 1260/R-77, he has no right to contest transfer in favour of anybody else, the petitioner.
8. In view of what has been stated above, this petition is liable to succeed. It is accordingly allowed and the order of the learned Deputy Settlement Commissioner dated 9-5-1974 is declared to have been passed without lawful authority and of no legal effect. The case is remanded to the learned Deputy Settlement Commissioner for disposal of the petitioner's form in accordance with law. In the circumstance of the case, the parties shall bear their own costs.