' This writ petition had been filed by Ch. Muhammad Ismail, a claimant allottee of a residential portion of property situated in Urdu Bazar, Lahore on the grievance that his C.H. Form transfer of a house remained undisposed of as a result of illegal procedure adopted by the Settlement Authorities.
2. The brief facts of case are that the petitioner Dr. Muhammad Ismail, who died during the pendency of the petition and his legal heirs have been brought on record, was allotted upper portion of residential premises bearing survey No. S-90-R-18, Mohan Lal Road now Urdu Bazar, Lahore by the Rehabilitation Authority on 19-2-1948. Dr. Muhammad Ismail was a claimant displaced person who on 15-7-1959 filed C.H. Form No. 3486 for the transfer of the house. The C.H.
Form of the petitioner had to be disposed of under Settlement Scheme No. I by the Deputy Settlement Commissioner of the area concerned.
' The said officer failed to exercise jurisdiction vested in him and to act in accordance with law despite efforts of the petitioner.
3. On the ground-floor of the property is undisputedly located Chopra Printing Press. There is also a finding to the same effect by the Settlement Commissioner (Industries) that the printing press is located on the ground floor only. This printing press was applied for transfer under Settlement Scheme No. 2 by respondent No. 1 as an industrial concern on the basis of allotted possession. The then Additional Settlement Commissioner (Industries) by order, dated 23-9-1960 held the industrial concern known as Chopra Printing Press, Urdu Bazar, Lahore was allotted to Syed Muhammad Usman (father of respondent No. 19 in May, 1955. After the demise of said Muhammad Usman i.e. 1957, the press was in possession of his son Muhammad Ihsan (respondent No. 1) on behalf of other legal heirs as well. This officer found the legal heirs of Syed Muhammad Usman entitled to the transfer of the said industrial concern i.e. the Chopra Printing Press as it was in their allotted possession. It is the case of the respondent that thereafter the other legal heirs surrendered their rights in favour of respondent No. 1 Muhammad Ihsan. However, respondents thereafter laid claim to be the transferee of two multi-storeyed properties bearing Nos. 18 and 20 in their entirety, on the plea that the Settlement Department had charged the transfer price of these two properties and not only of the groundfloor portion which accommodated the printing press. It was further pleaded that this assessm ent of the transfer price was approved by the Settlement Commissioner (Industries).
4. There were other occupants of this property bearing No. S-90-R-20, namely, Mst. Sardar Begum and Mat. Nasim Begum,. They agitated for the transfer of that property and a D.S.C. in 1964 transferred the first floor of the property to Mst. Sardar Begum and the upper most storey to Mst.
Nasim Begum. Respondent No. 1 challenged the order of the D.S.C. by way of an appeal before an Additional Settlement Commissioner on the ground that the entire property stood transferred to him as industrial concern. Mst. Nasim Begum filed a counter-appeal claiming a portion on the ground floor as well. The Additional Settlement Commissioner by his order, dated 12-3-1966 accepted the appeal of respondent No. 1, S.M. Ihsan and rejected the appeal of Mst. Nasim Begum.
He was of the view that it was a result of lack of co-ordination between the two authorities, i.e. Additional Settlement Commissioner (Industries) and the Deputy Settlement Commissioner the multiple transfer of same premises had resulted in this case. It was observed that although no specific details of the extent of accommodation transferred to S.M. Ihsan were available in the contents of the orders of transfer as a printing press, yet from the details thereof considered for purposes of evaluation in his report by the Executive Engineer and its adoption by the Additional Settlement Commissioner (Industries), transfer of the entire premises bearing Nos. S-90-R-18 and S-90-R-20 was implied and as such no part of the building remained available for transfer to any other person. Help was sought for this finding from this finding from the evaluation chart of the property prepared by the Executive Engineer and approved by the Additional and Settlement Commissioner (Industries).
5. In the meanwhile, Dr. Ch. Muhammad Ismail kept on giving applications to the Additiona!
Settlement Commissioner and the D.S.C. for disposal of his C.H. form with regard to the property in his allotted possession. The D.S.C. of Centre No. 2, Lahore moved into the matter belatedly and sent a notice to the petitioner that his case would be heard on 28-4-1965 for disposal of his form. In these proceedings, respondent. No. 1 S.M. Ihsan also appeared. The D.S.C. by his order, dated 28-7- 1965 adjourned the matter sine die on the plea of respondent No. 1 that the matter was sub judice before the Additional Settlement Commissioner in appeal to which proceedings Dr.Muhammad Ismail was not a party. He ordered that the case would be taken up after decision of the appeal.
6. Revisions were filed by Mst. Sardar Begum and Mst. Nasirn Begum in the Court of Settlement Commissioner, Lahore against the order of the Additional Settlement Commissioner, dated 12-3- 1966. Somehow these revisional proceedings were undertaken by Kh. Mahmood Sadiq, Settlement Commissioner (Industries), West Pakistan, Lahore. This may be ostensibly for the reason that a transferee of an industrial concern was contesting the proceedings.
7. The petitioner Dr. Ch. Muhammad Ismail applied to the Settlement Commissioner to implead as a party to revisional proceedings through a formal application. The Settlement Commissioner after hearing the parties, by his order, dated 30-8-1971 rejected the application of Dr. Ismail for being impleaded as a part to the proceedings after holding that "his portion is not in dispute. His application for becoming a party is, therefore, rejected".
8. The same Settlement Commissioner later, by his order, dated 26-10-1971, decided the dispute between the parties to those proceedings after observing that he had no jurisdiction in the matter in view of the order of the Additional Settlement Commissioner (Industries), dated 23-9-1960 and the subsequent order of the Settlement Commissioner (Industries) approving the evaluation of the transfer price of the printing press. According to this officer, the transfer price of both the properties had been assessed and charged from the transferee of the industrial concern and thus the Additional Settlement Commissioner (Judicial), Lahore, in his order impugned before him, was right in holding that no portion was available for transfer to Mst. Sardar Begurn and Mst. Nasim Begum.
9. The case of the disposal of C.11. Form of Dr. Ch. Muhammad Ismail was thereafter taken up by Mr. Muhammad Arif Rana, Deputy Settlement Commissioner, Centre No. 2 before whom respondent No. 1 all appeared. This officer held that according to the judgment of the Settlement Commissioner (Industries), dated 26-10-1971 the portion in possession of Dr. Ch. Muhammad Ismail was not available of disposal and thus he was unable to transfer it to the applicant. The C.H. Form submitted by Dr. Muhammad Ismail was thus consigned to the record, by order, dated 25-4-1972.
10. In the above background, the petitioners' predecessor-in-interest Dr. Muhammad Ismail, approached this Court by the way of constitutional petition No. 463/R of 1972 which was disposed of in limine by his Lordship Mr. Justice Muhammad lqbal (as he then was) by order, dated 17-7-1972.
The High Court observed-- "Doubtless, this order, could not affect the portion in possession of the petitioner in view of the order of the Settlement Commissioner, dated 30th of August, 1971, The Deputy Settlement Commissioner, therefore, instead of deciding the case of the petitioner with reference to the application which he is alleged to have made for the transfer of the house passed the impugned order, dated the 28th of April, 1972, declining to examine the case of the petitioner on the ground that the portion in his possession was not available having been transferred to respondeht S.M. Ihsan by the order of the Settlement Commissioner, dated the 26th of October, 1971".
' The High Court then noticed the grievance of the petitioner Dr. Muhammad Ismail that the D.S.C. failed to take into consideration the order of the Settlement Commissioner, dated 30-8-1971 whereby it was held that the portion in possession of the petitioner was not in dispute and he was, therefore, not impleaded in the revision petition. It was then observed by this Court that-- "The proper course of the petitioner is to appeal to the Additional Settlement Commissioner. He can also move a revision petition to the Settlement Commissioner against the order of the Deputy Settlement Commissioner and he will be in a position to give effect to his order, dated the 30th of August, 1971, and, if it is contended by the respondent that the order passed by the Settlement Commissioner in revision petition on the 26th of October, 1971 was also in respect of the portion of the petitioner, to confront him with the order, dated the 30th of August, 1971 which was passed in the presence of the respondent."
' Since the petitioner had not exhausted his remedies the petition was held to be premature and disposed of in limine with a further observation that it will not operate as a bar for the petitioner to move a fresh petition if he failed to have his grievance redressed.
11. Thereafter, the petitioner Dr. Muhammad Ismail in pursuance of the High Court's order and observation in Writ Petition No. 463/R of 1972 filed a revision petition which was dismissed as being incompetent by the Settlement Commissioner on 18-12-1972 with an observation to file an appeal. I find that this averment is contained in para. 9 of the writ petition and I have checked it up with the written statement filed by respondent No. 1 where in reply to para. 9 it is admitted. This aspect is, therefore, not in dispute notwithstanding the fact that this order of the Settlement Commissioner is not filed with the writ petition. Thereafter, Dr. Muhammad Ismail was obliged to file an appeal before an Additional Settlement Commissioner on 4-1-1973. There was change of law brought about by Evacuee Property and Displaced Person (Amendment) Act, 1973 (Act LV of 1973) enforced on 30-7-1973, as a result whereof section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1973 was omitted and section 20 dealing with revision petitions was substituted.
The appeal before the Additional Settlement Commissioner was transmitted to Settlement Commissioner under substituted section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is in this manner that the Settlement Commissioner by his order, dated 26-5-1976 treated the revision petition as barred by time and dismissed it.
12. The Settlement Commissioner, while dismissing the revision petition of Dr.Ch. Muhammad Ismail, made the following observation:-- "The learned counsel for the petitioner in reply to the objection, read out the contents of order, dated 17-7-1972 of his Lordship Mr.Justice Sardar Muhammad lqbal, the then Judge of the Lahore High Court passed in disposal of the earlier writ petition moved by the petitioner against the impugned order. I have gone through the case referred to have wherein it was simply observed that the proper course for the petitioner was to appeal to the Additional Settlement Commissioner or refer a revision petition before the Settlement Commissioner against the order of the learned Deputy Settlement Commissioner."
' I am constrained to observe at this stage that Major Muhammad lqbal Cheema, Settlement Commissioner, could not profess ignorance of the true import of the order of the High Court. It appears that either he failed to read the order of the High Court with open eyes or purposefully misconstrued it. The clear observations made in the judgment under reference had cast an obligation on the Settlement Commissioner to take due notice of and to give effect to his own order, dated 30-8-1971, whereby it had been held that Dr. Muhammad Ismail's portion was not in dispute in the proceedings going on between the two ladies and respondent No.
1. This order was passed in presence of respondent No. 1, who was a party to it and thus was subsequently precluded from asserting to the contrary. The order of the Settlement Commissioner, dated 26-10-1971 disposing of the revision petition could not, therefore, subsequently be stretched to be standing in the way of Dr. Muhammad Ismail of construed to have decided the fate of the residential portion of the doctor.
13. I have heard the learned counsel for the parties and have also perused the material on the record.
14. The position admits of no doubt that the predecessor-in-interest of respondent No. 1 was an allottee in possession of Chopra Printing Press which was admittdly located on the ground floor of one or two properties as the case may be. The residential portion on the upper floor was allotted to and was in possession of late Dr.Ch. Muhammad Ismail. The Additional Settlement Commissioner (Industries) by his order, dated 23-9-1960 had simply taken up the case for disposal of the industrial concern as such which was at that time in allotted possession of respondent No. 1 for himself and on behalf of other legal heirs. This learned officer simply transferred Chopra Printing Press to respondent No. 1 through a judicial order. The fact is that an Executive Engineer had proposed and the Settlement Commissioner had charged from the transferee of the industrial concern additionally the price of the two properties on the first and second floors. It needed to be considered whether he was by itself sufficient in law to the extent of industrial concern to include the residential properties or change the residential character of the properties to that of an industrial concern through the methodology adopted in the present case. The industrial concerns and houses are distinct entities which are defined in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and their disposal falls under different Scheme framed under the Act. The determination of the extent and character of the properties, therefore, had to precede assumption of jurisdiction and exercise thereof under the two Schemes. In absence thereof, there could be no duplication or ouster of jurisdiction of one set of officers under one Scheme by officers under the other. The functionaries in the Settlement Department have failed to apply their conscious mind to these crucial questions which constituted jurisdictional facts. They merely took the orders passed in the Industries Wing as sacrosanct while completely ignoring the law. It is well-settled that the machinery of transfer under Settlement Laws cannot be put into operation unless the character of the property sought to be transferred is determined at first. Reference may be made to the case of Abdul Majid v. Chief Settlement Commissioner PLD 1967 SC 437. It was incumbent, therefore, for the Settlement Authorities on the industrial and the urban sides to apply their conscious mind and to decide the character of the properties involved as also the extent of the industrial concern, as well as, the residential properties. They were further required to properly construe and interpret the judicial order of the Additional Settlement Commissioner, dated 23-9-1960. All these essential legal requirements appear to have been ignored by the two set of officers in both wings of the Department. I am, thus perfectly clear in my mind that mere charging of the transfer price of properties other than an industrial concern from respondent No. 1 was wholly insufficient by itself to extend the scope of the judicial order of transfer by the Additional Settlement Commissioner, dated 23-9-1960.
15. The position thus admits of little doubt that it is only after the true character of the properties in dispute had been determined by the competent Settlement Authorities that foundation for the exercise of jurisdiction by the functionaries in the Settlement Department on the industrial side and the urban rehabilitation side would have been laid. The properties which were found and held to be urban residential properties had to be disposed of under Settlement Scheme No. 1 while the properties determined to be the industrial concern had to be disposed of under Settlement Scheme No. II. The fact that an Additional Settlement Commissioner (Industries) chose to pass an order earlier in point of time transferring the industrial concern to respondent No. 1 was in itself a wholly insufficient circumstance in law to deprive the authorities on the urban side of their jurisdiction to dispose of the residential properties. It must be observed that the basic order of the Additional Settlement Commissioner (Industries) transferring any urban residential property under Settlement Scheme No. II would have been void ab initio and a nullity in law to the extent of such residential properties. Similarly, an order passed by the functionaries under Settlement Scheme No. 1 with respect to an industrial concern allotted by the Rehabilitation Board would have been equally without jurisdiction, void and a nullity in law. These jurisdictional facts had to be adverted to be both set of officers and it is thereafter that foundation would have been laid for exercise of their jurisdiction in terms of the respective Schemes empowering them to exercise jurisdiction under them. Despite the fact that there is no determination to be found in the order of the Additional Settlement Commissioner (Industries), dated 23-9-1960 to this effect, the functionaries on the urban side under Settlement Scheme No. I when approached by the applicants allottees of residential properties felt hand-tied in view of the aforesaid order of the Additional Settlement Commissioner. There is thus a clear perversity of approach and procedure visible on the face of the record, which has resulted in failure to exercise jurisdiction on the part of the Settlement Authorities under Settlement Scheme No. I.
16. It cannot be ignored that Dr. Ch. Muhammad Ismail had submitted his C.H. Form as far back as 15-7-1959 under Settlement Scheme No. I for the transfer of the residential property in his allotted possession as a claimant displaced person. There was also an application moved by respondent No. 1 for the transfer of the industrial concern on the basis of allotted possession over it. If the order of the Additional Settlement Commissioner (Industries) was to affect the rights of Dr. Muhammad Ismail, it was incumbent upon this officer before passing the order, dated 23-9-1960 to have given notice to him and heard him. Dr. Muhammad Ismail was admittedly not a party to the proceedings or the order of the Additional Settlement Commissioner (Industries). It could not, therefore, bind Dr. Muhammad Ismail or affect his rights in the property for which he was an applicant. The subsequent proceedings by way of evaluation suffered from the same infirmity. The orders of the Settlement Authorities on the industrial side could not operate to the prejudice of Dr. Muhammad Ismail and were wholly ineffective to prejudice his entitlement or right to the transfer of the property allotted to him as a residential house. The refusal of the D.S.C. to exercise jurisdiction under Settlement Scheme No. I by order, dated 25-4-1972 on the assumption that the property in allotted possession of Dr. Muhammad Ismail already stood disposed of by order of the Additional Settlement Commissioner (Industries), and thus it was not available for disposal and ordering the consigning` of his C.H. From to the record suffered from a patent illegality and 'amounted to refusal exercise jurisdiction on a palpably wrong assumption and misreading of the order of the Additional Settlement Commissioner (Industries) as well as the. Scheme of Law which governed the cases.
This order, therefore, would stand vitiated and the subsequent order of the Settlement Commissioner refusing to interfere and ignoring the illegal character of the order of the Deputy Settlement Commissioner would also fall with it.
17. 1 am clear in my mind that, as observed by the Court in the course of Writ Petition No. 463/R of 1972 by its order, dated 17-7-1972, it was not open for the Settlement Commissioner or the Deputy Settlement Commissioner to treat the order of the Settlement Commissioner, dated 26-10-1971 as covering the transfer of the residential portion in allotted possession of Dr. Muhammad Ismail as having been disposed of in favour of respondent No.
1. It has already been held that the mere charging of the transfer price of two properties from respondent No. 1 beyond what constituted the industrialconcern was by itself wholly insufficient to deprive Dr. Muhammad Ismail of his entitlement to claim the transfer of the residential portion in his possession.
18. From the above analysis of the case, it will become crystal clear that the pleas of the petitioners have not received fair treatment in accordance with law at the hands of the respondents' who have either misdirected themselves in law or committed errors patent on the face of the record as is evident from the discussion above. They have left questions undecided and have acted on irrelevant consideration and failed to grasp the correct factual and legal position which has resulted in miscarriage of justice.
19. The learned counsel for the petitioners states that instead of this Court itself adjudicating the matters which have not been. decided so far, the case ought, to be remanded to the notified officer. This request is endorsed by the learned counsel for respondent No. 1 Malik Muhammad Nawaz as well as learned counsel for the Settlement Department Mr. Shahzad Jehangir.
20. Apart from the consensus among the parties, in such like Situations the proper- course to be followed is to remand the case to the functionaries below to proceed in accordance with law and to pass proper orders in the light of the observations made in this judgment. I must observe that whenever jurisdiction is conferred on a statutory functionary under any statute and which also lays down the steps and methods which must be followed, this Court would not permit a departure to be made from those absolute-requirements of law. This was a case involving the right of two set of claimants, one having a claim of industrial concern and the others having claims with respect to urban properties. It can also not be easily overlooked that the claimants are the vested beneficiaries of the compensation pool and the Settlement Law definitely showed a tenderness in favour of this category of persons. As a result of a perversity of procedure, the rights of the parties cannot be defeated and the merits and de-merits of their cases must receive due attention at the hands of the functionaries and the decision rendered in true perspective. Both the parties pray that the case he entrusted to the learned Member, Board of Revenue (Settlement and Rehabilitation) to be decided by him. The case is accordingly remanded to the learned Member, Board of Revenue (Settlement and Rehabilitation) for fresh disposal in the light of observations made in this judgment and those in the course of Writ Petition No.463/R of 1972 vide order, dated 17-7-1972. The learned Member will not hesitate to hold a factual inquiry and if necessary to visit the spot and summon the records of all the relevant agencies to determine the questions which arise for determination in this case.
21. The writ petition is accordingly accepted and the impugned orders, dated 25-4-1972, 18-12-1972 and 26-5-1976, passed by respondents Nos. 2 and 4, respectively, against the petitioners are declared to be without lawful, authority and of no legal effect. order of Settlement Commissioner (industries), dated 26-10-1971.,would not bound the petitioners and be ineffective qua them as their predecessor-in-interest was not made a party to the revisiorial proceedings on the finding that the residential portion in his possession was not in dispute. The C.11. Form of the petitioners would be deemed to be still pending and awaiting lawful disposal. Since the remand is by consent, there will be no order as to costs.
Writ accepted.