This writ petition has been filed to challenge the validity of the order, dated 2-12-1978, of the Deputy Settlement Commissioner, Farid Kot House, Lahore, relating to disposal of a Plot No. 34-A, Inside Shahalami Gate Development Scheme, Lahore.
2. Briefly, the facts giving rise to the filing of the present petition are that Charagh Din, respondent No. 2, made an application on 25-10-1973, on Form RSS-VIII (Building Side), for the transfer of Plot No. D-2493, bearing Khasra Nos. 9131, 9132 and 9133, situate at Kucha Dogran, Bazar Paper Mandi, Shah Alam Gate, Lahore. The application, in question, is at page 35 of the Settlement Record. In consequence, the Deputy Settlement Commissioner (Plots), vide his order dated 14-6-74 (Annexure J), treated the plot, in question, as available for disposal under the said Scheme and, accordingly, transferred the same in favour of respondent No. 2 on payment of Rs. 19.325, at the rate of Rs. 4,000 per marla being commercial area. This was followed by a Transfer Order, bearing No. 48513, dated 7-12-1974 (Annexure K). The area of the plot, in question, according to the transfer order as well as the transfer documents, is shown as four marlas and 1.87 sq. Ft. The certified copy of the Transfer Order is at Annexure K.
3. Subsequently, one, Nawab Din who is not a party to these proceedings, also applied for transfer of the portion of the plot, in dispute, but his application for transfer was turned down by the Deputy Settlement Commissioner/Deputy Administrator (Residual Properties), Lahore, vide his order, dated 2-12-1978 (Annexure M).
4. The petitioner, being aggrieved with the transfer order, made in favour of respondent No. 2, approached the Deputy Settlement Commissioner/ Deputy Administrator (Residual Properties), vide his application, dated 28.9-78 for being impleaded as a party (Annexure L.) The application was rejected by respondent No. 1 by an order, dated 2-12-1978 (Annexure M) which has been impugned in this writ petition. The basis for rejection was that after the issuance of Transfer Order in favour of respondent No. 2, the Settlement Department had become functus officio and had no jurisdiction to interfere into the matter at that belated stage.
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5. The petitioner has assailed the validity of the impugned order on the sole ground that the property, in dispute, in fact bears Plot No. 34-A and not Plot No. D/2493. The precise contention of the learned counsel for the petitioner is that the disputed house was owned by Raji Muhammad Shafi, predecessor-in-interest of respondents Nos. 3 to 9. The house, in ques--tion, was damaged before Partition during the Indo-Pakistan disturbances. After the creation of Pakistan, the Lahore Improvement Trust framed a Scheme for the development of damaged area known as "Shah Alam Gate Damaged Area Development Scheme" .To which the Central Government accorded approval for acquisition of evacuee land falling within the said Scheme vide its Letter No. F-16(13)/50-PII, dated the 16th of May 1957, (Annexure R 2). Subsequently, the plot bearing No. D/2494 was converted into Plot No. 34-A and exempted in favour of the said Haji Muhammad Shafi, the predecessor-in-interest of respondents Nos. 3 to 9 who sold the property, in dispute, .In favour of the petitioner through a registered sale deed dated I1-2-1976 (Annexure H). It may be pointed out that according to the stand taken by the Settlement Department, the number of the plot in dispute was 2493 and not D/2494 as alleged by the petitioner. The learned counsel for the petitioner, respondents Nos. 3 to 9 as well as the Lahore Development Authority contend that before the execution of the agreement between the said Haji Muhammad Shafi and the Lahore Improvement Trust, one, Gulzand Khan had, allegedly, constructed a tal of wood on the part of disputed plot.
However, before the possession could be delivered to the exemptee, as is apparent from Annexures B and D to the writ petition, it is alleged that possession had already been delivered by the said Gulzand Khan to respondent No. 2.
6. The only point urged by the learned counsel for the petitioner and the L. D. A. Is that since the plot in dispute admittedly, falls in Shah Alam Gate Development Scheme, the same could not have been transferred under the Settlement Laws in favour of respondent No. 2. Reference was made to Sh. Muhammad Sadiq v. The Chief Settlement Commissioner and another (1) and Deva Chand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi etc. (2). The aforesaid proposition of law was also followed in the unreported judgment of this Court in Shams-ud---Din Ahmad Deputy Collector of Customs (Preventive), Custom House, Karachi v. M. A. Rauf, Senior Superintendent of Police, Lahore etc. (Writ Petition No. 2054 of 1964) derided on 18-9-68 by my learned brother K. E. Chauhan J. (as he then was) and presently Hon'ble Judge of the Supreme Court. The aforesaid judgment of the learned Single Bench of this Court was also up held in Letters Patent Appeal No. 287 of 1968 dated 17-12-68.
7. Learned counsel for the petitioner and Mr. Farooq Zaman, counsel on behalf of the Lahore Development Authority contend that in view of the aforesaid pronouncements, the impugned order of transfer made by the Settlement Department in respect of the disputed plot is void ab initio, inas--much as, the plot in question never formed part of the compensation pool.
(1) PLD 1963 Lah. 499(2) PLD 1965 SC 356 Ch. Muhammad Nazir Ahmad, the learned counsel for the Settlement Department as well as the learned counsel for respondent No. 2 have opposed this writ petition. The learned counsel for the contesting respondents contend that the judgment reported in PLD 1963 Lah. 499 is not applicable to the facts of the present case, inasmuch as, the notification relied upon by the learned Single Judge of this Court, in that case, was cancelled - and replaced by another Notification. The learned counsel for the contesting respondents further contend that the notification, in question, was not brought to the notice of the learned Single Judge who delivered the aforesaid judgment. However, the amended notification as alleged has not been placed on record. This being so, the submission of the learned counsel for the contesting respondent is not substantiated by any material on record. The learned counsel for the contesting respondents further submits that sanction of the acquisition of the evacuee land by the Central Government was subject to two conditions, namely, the payment of fair compensation and providing alternate land to the refugees settled in that area, if any. It is submitted that these conditions precedent were never fulfilled and, therefore, there was no sanction of acquisition of the evacuee land in the eye of law, inasmuch as, the Lahore Improvement Trust of its successor, the Lahore Development Authority, has neither paid any thing to the Settlement Department nor they have provided any alternate land to the refugees settled in that area. The learned counsel for the contesting respondents further submits that the dictum laid down in Maulvi Muhammad Waheed Ullah v The Chairman Lahore Improvement Trust, Lahore PLD 1975 Lah. 586, is attracted to the facts of the present case, in which it has been held by the learned Single Judge of this Court that no scheme framed in pursuance of the Punjab Development of Damaged Area Act XV of 1952, could be implemented in respect of such area unless and until the concerned area is not acquired in accordance with law and possession delivered to the Trust. In the precedent case, the Lahore Improvement Trust issued a notice for demolition of the building to the petitioner who purchased an evacuee property in an auction and also obtained Permanent Transfer Deed. The ratio laid down in the precedent case was that in terms of section 30, notice for demolition of any building constructed in accordance with the plan situate in the area of the Scheme for the damaged areas cannot be demolished by the Trust unless the aforesaid conditions have been fulfilled. In the instant case, there is no question of demolition of the building and, therefore, on that ground alone, the precedent case is distinguishable and is not applicable to the facts of the present case. I am in agreement with the learned counsel for the petitioner and the L. D.
A. That the moment the competent authority sanctions the acquisition of the evacuee land, the property ceases to form part of the compensation pool irrespective of the fact whether the compensation in lieu thereof has been given or not and possession obtained. In this connection, it will be useful to reproduce the relevant portion as contained in para. 8 of the un-- reported judgment in Writ Petition No. 2054/64 which reads thus:- "The main point argued by the learned counsel for the petitioner was that under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, Settlement Authorities could transfer only such properties which fell in the "compensation pool" created under section 4 of the Act. The manner of including a property in the `compensation pool' was, that it was first to be acquired under subsection (2) of section 3 of the Act by the Centralor the Provincial Government.
Learned counsel submitted that in the notification (Annexure `W'1 which was issued in this behalf for acquiring evacuee property for `compensation pool' on the 21st of August, 1959, "property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee) Property Act, 1957, or under any law for the time being in force for the administration of evacuee property in Pakistan has been according before the date of this notification" had been exempted and had not been acquired. The obvious result of this was that the property for the acquisition of which sanction of the Central Government had been accorded in accordance with any other Scheme or other laws did not go into `compensation pool', and consequently such property could not be transferred by the Settlement Department. This is quite sound but if authority be needed reference can be made to Devachand Muljimal v. Deputy Settlement and Rehabilitation Commissioner PLD 1965 SC 356 and Sh. Muhammad Sadiq v. Chief Settlement Commissioner PLD 1963 Lah. 499."
As earlier pointed out, the aforesaid judgment of the learned Single Bench has also been upheld by the Division Bench of this Court in Letters Patent Appeal No. 287 of 1968 which is binding on me.
8. The learned counsel for the respondent No. 2 has raised objection as to the maintainability of the writ petition: Firstly, that respondents Nos. 3 to 9 made an application dated 14-11-1974 (Annexure R2/1) for the demarcation of the property, in dispute, which was consigned to record by the order dated 12-12-1974 (Annexure R2/2) by the Deputy Settlement Commissioner, which order they never challenged before any appropriate forum and, therefore, the petitioner has no locus stand! To file the present writ petition as he stepped into the shoes of his predecessor i. e. Respondents Nos. 3 to
9. This objection raised by the contesting respondents is devoid of any force, inasmuch as, there was no adjudication on the prayer of the respondents No. 3 to 9 for the demarcation of the property, in dispute, but their application was merely consigned to record without disposal on merit. The learned counsel for the contesting respondents has further contended that the Transfer Order in respect of the property, in dispute, was issued in favour of respondent No. 2 on 7-12-1974 (Ancexure K) and this being so, the petitioner should not have entered into any sale transaction with respect to this property unless and until the Transfer Order, in question, was quashed by the competent authority in appropriate proceedings. The learned counsel for the petitioner submits, in rebuttal to this point, that it was not within the knowledge of the petitioner that respondent No. 2 had obtained a Transfer Order from the Settlement Department in respect of the disputed property and that the petitioner was a bona fide purchaser for valuable consideration of the disputed plot and, therefore, she could not be deprived of ownership of the plot merely because of these technicalities, particularly, if it is proved to the satisfaction of this Court that the Transfer Order was void ab initio and the disputed plot never formed part of the Compensation Pool. I am also inclined to agree with the submissions of the learned counsel for the petitioner of this point. The learned counsel for the contesting respondent No. 2 lastly contended that the writ petition is hit by the doctrine of laches, inasmuch as, the impugned order was passed on 14-6-74 and the last order on the Settlement side was passed on 2-12-1978 (Annexure M) but the writ petition on 29-5-79. The learned counsel for the petitioner has submitted in rebuttal that he was not a party to the proceedings before the Settlement Authorities and when he came to know of the impugned Transfer Order, he approached this Court for the redress of his grievance.
9. No bard and fast rules can be laid down for dismissing a writ petition on account of laches. Each case is to be decided on its own merits. In the instant case, I am of the opinion that since the in dispute does not form part of the "compensation pool" and the petitioner is a bona fide purchaser for value from the exemptees of the Lahore Development Authority, therefore, I am inclined to condone the delay in the filing of the writ petition.
10. Be that as it may, the petitioner and the contesting responder No. 2 have arrived at a compromise to which no exception has been taken by the learned counsel for the Lahore Development Authority. The learned counsel for the parties have desired that the writ petition be decided in terms of the compromise arrived at by the parties. An application under Order XXIII, rule 3, C. P. C. Read with section 151, C. P. C., duly signed by the learned counsel for the parties as well as the parties, has been placed on record. A photo copy of the compromise has also been placed on record. The operative part of the compromise reads thus: "The petitioner and respondent No. 2, have mutually agreed to compromise and appointed an arbitrator, namely Muhammad Sadiq Hamid son of Ch. Allah Din, resident of 31-A/A, Shahalam Market, Lahore, by means of a written deed by the petitioner and respondent No. 2. In consequence of this the petitioner's attorney Ch. Muhammad Shafi son of Ch. Khuda Bakhsh, .And respondent No. 2 Ch. Chiragh Din son of Ch. Roshan Din having come to compromise by a written decision of the arbitrator dated 23-11-1981, the petitioner has agreed to sell by means of a registered sale deed Plot No. 34/A, the subject matter of the writ petition exempted in favour of the petitioner in consideration of Rs. 2,00,000, which is to be paid by the respondent No. 2, within a period of 3 months, the plot in possession of the respondent No. 2, now shall be retained by him as owner by means of a sale deed to be executed and in case of non-compliance of the decision by the respondent No. 2, the petitioner shall pay 3 times the transfer price of the disputed plot i. e. Rs.
21,042, and the respondent No. 2 will hand over the possession of the plot to her. The L. D. A. Has no objection to the compromise mutually arrived at by the petitioner and respondent No. 2."
11. In view of the above, the writ petition stands disposed of in terms of the aforesaid compromise with no orders as to costs.