This petition is directed against the orders passed by the Deputy Settlement Commissioner on 31- 10-1977 and the order dated 2-2-1978 passed by the Settlement Commissioner, Karachi pursuant to the order of remand made in C. P. No. 718/75 by the learned Single Judge of this Court.
1. The brief facts of the case ate that the petitioner is transferee of shop No. 6/38-G. 5 Shahrah-e- Iraq, Saddar, Karachi in respect of which shop, PTD was issued in his favour on 11-10-1961.
Subsequently litigation started between the petitioner and respondent No. 3 (Wahabuddin), over, the transfer of shop No. 6/38-G 5-A to the latter by the Settlement Authorities.
2. The order of the transfer- of the tenement No. G-5-A in favour of R. No. 3 subsequently became subject-matter of C. P. No. 718/75 which was disposed of by order passed on 30-5-1977, whereby the learned Single Judge after observing that the settlement authorities had not taken into consideration. The respective claims of the parties in deciding the vital issue whether the cabin or any portion thereof was unauthorisedly constructed by the respondent/ Wahabuddin; and if the same formed part and parcel of the premises transferred to- the petitioner, Noor Muhammad, or that it was constructed on area not of fact which should have been gone into by the Deputy Settlement Commissioner before the passed the order of 10th April, .1975 transferring the tenement No. G-5-A to the present respondent No.3/Wahabuddin, and further observing that the order had admittedly been passed without hearing the petitioner could not be sustained, with the consent of the parties. Remanded the case to the settlement authorities with the directions "Since this is a matter which needs to be thoroughly probed into by the Settlement Authorities for the purposes of determining the entitlement of respondent No. 5 to the transfer of the cabin in dispute, the learned counsel appearing for the petitioner and Respondent No. 5 agreed that the matter be remanded for decision to the Deputy Settlement Commissioner/District Settlement Cell, Karachi for fresh decision on merits. I accordingly allow this Petition with no order as to costs. The P. T. D. Issued in favour of Respondent No. 5 is cancelled. The Deputy Settlement Commissioner is directed to inspect the site and decide the question of transfer of cabin in dispute to Respondent No. 5 after hearing the petitioner and examining all the contentions raised by the petitioner before him."
The R. No. 5 referred in (he above orders Wahabuddin who is R. No. 3 in the present petition :
3. Pursuant to the above order of remand, the Deputy Settlement Commissioner after inspection of the site in presence of the parties and hearing them, by a detailed order passed on 31-10-1977 came to the conclusion that the cabin in question (Shop No. G-5-A) was in existence as a regular shop, and is situated in the main commercial area much before crucial date viz. 20-12-1958, and that it is an accretion to the evacuee property and surveyed as G/5-A as a separate entity and was available for disposal.
The Deputy Settlement Commissioner proceeded to hold as follows :- , "As regards the site plan of tenement No. G/5 is concerned the transferee of shop is entitled for the accommodation as surveyed by the custodian authorities shown in the E. P. R. And not more than that. Even the raised platform '2. 9" x'11 x 1 ft. Size. Therefore the inclusion of the platform is not justified. Moreover verification of site plan is an administrative, order therefore, it is being amended by excluding the area of the raised platform i.e. '2.9 ' x ' 11 x 1 fro m the plan of tenement No. G/5.
4. Against the .Above-mentioned order a revision petition was filed before the Settlement Commissioner/Chief Accounts Officer, Karachi who by order passed on 2-2-1978 concurred with the findings of the Deputy Settlement Commissioner and held that there was no reason to differ from the findings arrived at by the Deputy Settlement Commissioner and accordingly dismissed the Revision Application..
5. The above orders are now challenged by the petitioner by this petition filed invoking the constitutional jurisdiction of this Court under. Article 199 of the then Constitution of Pakistan. 1973.
6. Mr. Ahmadullah Farooqui, the learned counsel for the petitioner attacked the validity of the order of transfer of G-5 -A in favour of Respondent No. 3 on various grounds. 1 however find that the said objections cannot be sustained firstly for the reason that the settlement authorities, who had decided the matter afresh by order passed by Deputy Settlement Commissioner on 31-101977 and which was upheld by the Settlement Commissioner on 2-2-1978 in revision, had acted pursuant to the orders of remand passed by the High Court in C. P. No. 718 of 1975 which order of remand was passed by consent to which the petitioner himself was a party. The order of remand thus passed was not challenged further by the petitioner and as such the same attained finality. The petitioner therefore cannot be allowed to contend that the settlement authorities had no jurisdiction to pass the orders which are now sought to be impugned. Reference may here be made to the case of Murad Bibi v. Ramzan Bibi (1968SCMR1001). Where the honourable Supreme Court observed that an order which had been allowed to become final, could not be attacked before High Court or Supreme Court.
7. It would also be noted here that both the tribunals below have given concurrent findings of fact after inspection of the site and hearing the parties, that tenement No. G-5 A is a separate entity and was available for transfer and that the petitioner is the transferee of tenement No. G-5, which has been transferred to him as a' shop and that he was thus not entitled to claim more than the accommodation as surveyed by the Custodian authorities shown in the E. P. R. (Evacuee Property Register). These findings of fact were given in orders passed pursuant to the order of remand made by the High Court on matters which were left open to be decided by the Deputy Settlement Commissioner who was directed to inspect the site and decide the question of transfer c of cabin in dispute to Wahabuddin after hearing the petitioner and examining all the contentions of the parties. These findings of fact based on material on record given by tribunals of competent jurisdiction cannot be allowed to be challenged or reopened before the High Court in exercise of its constitutional jurisdictions Reference may here be made to the principles laid down by the Honourable Supreme Court of Pakistan in the case of Zulfi'kpr Khan Awan v. The Secretary and others (1974SCMR530), and the case of Muhammad Hussain v. Sikandarand others (PLD1974SC139). The following observations cited with approval by the honourable Supreme Court in the case of Muhammad Hussain may be usefully reproduced here :- "The proposition is indisputable that w en there is jurisdiction to decide a particular matter then there is jurisdiction to do it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction."
8. 1n view of the principles laid down by the Honourable Supreme Court referred to above, it is not open to the petitioner to urge that the orders of the Deputy Settlement Commissioner and the Settlement Commissioner passed on remand by the High Court are erroneous on merits and are thus liable to be set aside. It is obvious that in exercise of its constitutional jurisdiction under Article 199 this Court cannot convert itself into an appellate Court and enter upon an inquiry into disputed questions of fact and allow such questions to be reagitated.
9. The learned counsel for he petitioner then argued that the transfer made in favour of Respondent No. 3 of the tenement No. G-5-A held to be an independent tenement available for transfer, ought not to have been transferred in favour of Respondent No. 3. It would however be seen that the petitioner was not-found entitled to transfer of the shop G-5-A. He having thus been eliminated by the Settlement authorities, had no locus stand! To challenge the transfer of the said shop in favour of the Respondent No. 3. In the circumstances, finding that the petitioner's entitlement has been negatived, it is no concern of his to question the transfer of the property to any other person. If any authority is needed reference may be made to the case of Allah Bux y.
Hassan Mahmood (PLD 1967 Lah. 346).
10. Reference may also be made to the case of Shaikh Burkat Ali v. Additional Settlement Commissioner (1972 SCMR 293). The facts briefly stated of the said case were that the Settlement authorities finally transferred the property in question to the respondent in that case as being entitled to its transfer. The claim of the petitioner 'was rejected on the ground that he did not satisfy the conditions so as to make him eligible for the transfer of the said house. The petitioner challenged the orders of the Settlement authorities in the High Court and a learned Single Judge of the Lahore High Court dismissed the said petition on the short. Ground that the allotment in favour of the petitioner was obviously void having been made without prior consideration of the allotment existing in favour of the respondent/transferee and was without notice to her. The learned Single Judge however came to the further conclusion that the respondent transferee was also not entitled to the transfer of the house as she was not a displaced person. Beth the parties filed Letters Patent Appeals in the High Court. The appeal of the respondent transferee was accepted and that of the petitioner was dismissed. A petition for special leave to appeal in the circumstances was filed in the Supreme Court but the same was dismissed with the observations that :- "The learned Judges of the Letters Patent Bench -have held that since the petitioner was found not to be entitled to the transfer of the house in question, he did' not have any locus standi to challenge the transfer in favour of the respondent. They have further held that on facts, the Settlement Commissioner was right is holding that Mst. Shahzadi Begum was a displaced person and the interference in this finding on the part of the learned Single Judge in the High Court in writ jurisdiction was unwarranted, as the finding of the Settlement Commissioner was well-based on facts was and in accordance with law:"
11. The last submission made by the learned counsel for the petitioner was to the effect that even if it be found that he was not entitled to the transfer to the tenement No. G-5-A, the said property ought to have been put to auction in which case he would have been entitled to submit his own bid to purchase the said property. This submission of the learned counsel however would not enable him to maintain a petition l under Article 199 of the Constitution as a mere chance to bid- at an auction cannot confer any right upon the petitioner to file petition. Under the Constitution to challenge the transfer in favour of the respondent No. 3 who has been found to be entitled to its transfer and in respect of which the- petitioner had already been eliminated before the Settlement authorities.
12. Lastly it may be mentioned that since it has been found that Shop No. G-5-A is an independent shop which was available for transfer and that the petitioner is already a transferee of another shop bearing No. G-5, under the Displaced Persons (C and R) Act of 1958 ride para. 8 of the Schedule, the cannot claim transfer of more than one shop.
13. The upshot of the above discussions is that there is no merit in this petition which is dismissed.
There shall however be no order as to costs as the respondents are absent.