' This constitutional petition was filed. by Umar Din, deceased now represented by his legal representatives and Jan Muhammad calling in question the order, dated 2-9-1976 passed by Mr. Muhammad Arif Rana, the then Deputy Settlement Commissioner, Gujranwala whereby Umar Din petitioner as well as Abdul Rashid, respondent who has also died and is now represented by his legal representatives were held ineligible to file C.H. Form and consequently not entitled to seek transfer of House bearing No. B-XIX-19-S-96 Gujranwala. A criminal case was however, ordered to be registered with the police against the petitioners and Abdul Rashid respondent for having tampered with the judicial order, dated 3-7-1956 passed by the then Rehabilitation Commissioner, Lahore Division, Lahore. The other reliefs prayed for in the petition inter alia are that the direction to finalise the transfer in favour of the petitioners etc., by adjusting transfer price from their compensation books be passed and the necessary document of transfer be ordered to be issued, that the respondents be proceeded against and punished for contempt of Court in accordance with law so as to vindicate and uphold the authority of the Court, and considerable compensation be awarded to the petitioners. As the property in question in the meanwhile was transferred vide order, dated 23-9-1976 in favour of Rehmatullah against Form filed under Settlement Scheme No. VIII, the petitioners filed Civil Miscellaneous Application No. 3 of 1976 so as implead aforesaid Rehmatullah and to have the order of transfer, dated 23-9-1976 made in favour of Rehmatullah quashed. It was also prayed that this petition be considered as a substantial part of the original petition and that suitable measures be adopted for enforcement of the judicial order by directing the respondents to put the petitioners in physical possession of the house in dispute. This application was allowed subject to all just exceptions. It may be stated at the very outset that Rehmatullah respondent, the present transferee is son-in-law of Hakam Din who in his lifetime and his legal heirs after his death have been continuing with the litigation respecting this property since, 1953. The litigation was started when a notice of ejectment, dated 23-3-1953 was issued by the then Deputy Rehabilitation Commissioner to Hakam Din deceased. The chequered history of this litigation till the decision, dated 14-11-1973 of Writ Petition No. 30-R of 1971 need not be narrated in detail as the entire history has been given in the judgment of this Court in aforesaid Constitutional petition. This judgment,. dated 14-11-1973 passed in Writ Petition No. 30-R of 1971 was challenged by Hakim Din by filing petition for Special Leave to Appeal No. 66 of 1974 but the same was dismissed by the learned Judge of the Supreme Court vide, judgment, dated 21st June, 1974.
The heirs of Hakim Din then filed a Review Petition No. , 14-R of 1975 which was also dismissed by the Supreme Court on 8-1-1978 (for judgment see 1978 SCMR 163). At this stage the observation of the learned Judges of the Supreme Court about the vexatious nature of the litigation carried on by Hakim Din his legal representatives may be reproduced:- "Incidently this case is a typical example of vaxatious litigation and more than that is a classical illustration of dog in the manger policy, so far successfully pursued by Hakam Din and after his death by the petitioners hereunder who despite being non-suited a number of times in proceedings properly brought before different forums, have nevertheless been able to hang on the property, defeating valid orders made from time to time in respect of the property in dispute."
' Despite these observations and various judgments holding Hakim Din and his heirs are not entitled to obtain the transfer of the house in question and upholding and maintaining the ejectment orders and the ejectment notices issued to eject respondent No.2 from the house in question the position which obtains still in 1985 is that the house in question is still in occupation of legal heirs of Hakam Din deceased and the transfer order has been obtained of the said house by Rehmatullah son-in-law of Hakam Din on the basis of a form submitted under Settlement Scheme No.VIII. Both the impugned orders, dated 2-9-1976 and 23-9-1976 were passed by Mr. Muhammad Arif Rana, the then Deputy Settlement Commissioner, Gujranwala. Under the order, dated 2-9-1976 Umar Din was held not entitled to the transfer of the house on the ground that Umar Din and Abdul Rashid had filed a joint C.H. Form on the strength of the allotment of the house in dispute in the name of Muhammad Asghar and Abdul Rashid. It was held that that Muhammad Asghar was not in possession of the property at the relevant time i.e. submission of the joint Form by Umar Din and as such on the strength of alleged allotment in favour of his son, he could not legally file the C.H.
Form as there was no instruction to afford the benefit of such an allotment to Umar Din. Abdul Rashid was excluded by taking note of a para. of the reply filed by him in Crl.O. 114-W of 1972 wherefrom an admission cf having committed forgery and of making the interpolation in the orders, dated 3-7-1956 passed by the then Rehabilitation Commissioner was called out and by observing that the act of forgery and interpolation had been committed by Jan Muhammad within the knowledge, at the behest and for the benefit of Umar Din and Abdul Rashid. As regards the other allotment order, dated 27-11-1956 it was observed that the same was of no avail as the said allotment order was 'passed in direct contravention of the stay order granted by the Deputy Commissioner which was a Court of exclusive jurisdiction and hence the said allotment order was a nullity in the eye of law. The Deputy Settlement Commissioner further held that even on merits the form of Abdul Rashid was liable to be rejected as in order to succeed in seeking transfer, an applicant has to show and prove that he was in possession of the premises within the meaning of section 2(6) of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. It was also observed that Abdul Rashid was admittedly out of possession of the property till date and the ejectment proceedings were also undoubtedly not preceded by a show-cause notice and so these being in violation of the principle of natural justice were consequently null and void and that in any case the applicant could not take benefit of the notification No.F 3 (3)/60-SI, dated 6-9-1960. The direction to register a criminal case was also passed on the basis of the observations which have been noted above.
' At this stage it is pertinent to mention that in the proceedings held by the Deputy Settlement Commissioner Nazir Hussain etc. the legal heirs of Hakim Din submitted application, dated 21-2- 1976 for being impleaded as a party to the proceedings but this application was rejected on 10-4- 1976 by the Deputy Settlement Commissioner observing that Nazir Hussain etc. had no locus standi as they had been eliminated by the High Court.
2. After excluding U mar Din petitioner and Abdul Rashid respondent by rejecting the joint C.H. Form filed by them the house in dispute was treated as an "available property". This is how the joint C.H.
Form was taken up for disposal. In the joint Form submitted on 22-2-1974 by Nazir Hussain and Rehmatullah the date of possession of Rehmatullah was shown as July, 1971 and that of Nazir Hussain the co-applicant as September, 1347. On this form the report, dated 17th September, 1976 made by the Record Keeper reads as under:- "As per order, dated 2-9-1976 the property in question has been declared available property. A Form RSS.VIII/135 of Nazir Hussain and Rehmatullah is available on record and the same has not been disposed of. Spot has been visited.This property is in possession of Rahmatullah son of Feroze Din only. Nazir Hussain was not found in possession and that Rahmatullah stated that since long ago Nazir Hussain has surrendered the possession and that he is in the exclusive possession of the same. The form and file is submitted for orders."
' This report forwarded by Head Clerk of the Office with recommendation that Nazir Hussain is not competent to claim transfer so his name should be struck off in obedience to the order of the High Court. It was added Rahmatullah who remained in the field though was son-in-law of Hakam Din deceased but as under law a son-in-law did not fall within the definition of "successors-in-interest" of Hakam Din he was therefore entitled to the transfer of the property which was in his sole possession. Thereafter, statement of Rahmatullah was recorded by the Deputy Settlement Commissioner on 23-9-1976. Rahmatullah respondent in this statement stated that he was in continuous possession of the house since July, 1971, that before him Nazir Hussain son, of Hakam Din was in possession but a little later he surrendered possession of the house to him and since then he was in exclusive possession and use of the house. It will be noted that Nazir Hussain co- applicant was not examined. The Deputy Settlement Commissioner accepted the version of Rahmatullah that he was in exclusive possession of the house since 1971 and directed the transfer of the house, vide order, dated 23-9-1976.
3. Muhammad Arif Rana, respondent No. 1 was provided an opportunity to explain his position and conduct in view of the pleas of mala fide conduct taken against him. He stated that he had nothing special to submit and that he adopted the arguments addressed by the learned counsel for respondent No.
3. Ch. Khurshid Ahmad, Advocate counsel for Rahmatullah respondent No. 3 vehemently contested this petition. He raised preliminary objection as to the maintainability of the petition on the ground that Jan Muhammad petitioner No.2 had no locus standi to maintain the petition in his own name as he being only an attorney firstly of Umar Din deceased and after his demise of his legal representatives cannot claim to be personally aggrieved of the order passed. There is no merit in this perliminary objection. This petition was filed by Jan Muhammad and Umar Din jointly. The co- petitioner, namely, Wear Din had died. After his demise his legal representatives have been brought on record and are pursuing the petition through Jan Muhammad their attorney. As regards locus standi of Jan Muhammad in person it will be noted that vide, impugned order, dated 2-9-1976 a direction for registering a criminal case against Jan Muhammad as well was passed. This direction has also been impugned in this petition. Jan Muhammad as such is personally aggrieved of the impugned order also and as such he is an aggrieved person and has the necessary locus standi to maintain the petition. The preliminary objection is, therefore, repelled. The second objection raised was that the order of transfer in favour of Rehmatullah having not been challenged in the petition the said order had become final and hence no relief could be granted to the petitioners. This objection is also without merit as the petitioners moved Civil Miscellaneous Application No. 3 of 1976 whereby the order transfer, dated 23-9-1976 was also challenged and the ground taken and relief prayed therein were requested to be considered as 'part of the main Constitutional petition.
This C.M. application was allowed subject to all just exceptions. No reasonable basis was shown for not treating the grounds taken and the reliefs prayed in the civil miscellaneous application as part of the main petition. This objection is also repelled.
4. On merits Ch. Khurshid Ahmad, Advocate supported the impugned orders on the basis of the reasoning contained in the impugned orders. He added that Umar Din and Abdul Rashid were not entitled to seek transfer of the house; the joint C.H. Form filed by them was rightly rejected and thus the house became available and the same was then justifiably transferred to Rehmatullah respondent against the form submitted under Revised Settlement Scheme No.VIII.
Jan Muhammad petitioner who argued the case himself submitted that the impugned order, dated 2-9-1976 was passed by the learned Deputy Settlement, Commissioner completely ignoring the findings recorded by this Court in its judgment, dated 14-11-1973 which were affirmed by the Supreme Ccurt in the judgment, dated 21-6-1974 in C.P.S.L.A. No. 66 of 1974. His plea was that the judgments of the High Court were Litentionally violated with a view to defeat justice, to deny the transfer of the house to the petitioners and to secure the transfer of the house to the family of Hakam Din in the name of Rehmatullah his son-in-law. It was argued that in view of the findings recorded by the High Court and the Supreme Court in the aforenoted cases no other order except order of transfer of house in favour of the petitioner Umar Din, could be passed but the Deputy Settlement Commissioner acting in collusion with Rehmatullah and legal representative of Hakim Din subverted the course of justice in a most mala fide manner.
5. I have gone through the entire record of litigation particularly the record of Writ Petition No. 30-R of 1971 and Writ Petition No. 1438-R of 1976. The order, dated 2-9-1976 is based on the premises that Muhammad Asghar the allottee and son of Umar Din was not in possession of the suit property at the time of submission of the joint form and as such he was not entitled legally to file C.H. Form. As regards Abdul Rashid it was observed that in an inquiry held under the direction of the Chief Settlement Commissioner in presence of the parties it was found as a fact that the order, dated 3- 7-1956 of the. Rehabilitation Commissioner was tampered with by Abdul Rashid etc.; that the allotment order, dated 27-11-1956 was void and ineffective in law as the same was passed in direct contravention of the stay order granted by the Deputy Custodian; that the ejectment proceedings were not proceeded by a show-cause notice; these proceedings being violative of rule of natural justice were null and void; and that Abdul Rashid could not take benefit of the notification, dated 9- 9-1960. These findings according to Jan Muhammad were not only untenable in law but were also in direct conflict with the findings recorded in the judgment, dated 14-11-1973 passed in W.P. No.30- R/71 which were affirmed in C.P.S.L.A. No. 66 of 1974 and again in order, dated 8-1-1978 passed in the review petition. Reference at this stage may appropriately be made to the findings recorded by the learned Judge of this Court in judgment, dated 14-11-1973. As regard entitlement of Umar Din and Abdul Rashid it was observed and held in paras 21 and 22 of the judgment as under: "(21) The above mentioned facts, therefore clearly establish that so far as the transferee Hakam Din was concerned, the ejectment order against him had become final' and the mere fact that he continued to retain possession of the property in dispute. would not give him any right in his capacity as a local to claim the transfer of the property in dispute, So far as the petitioner and Abdul Rashid respondent No.6 are concerned. I have checked up the original file, the form filed by Umar Din petitioner and Abdul Rashid respondent is duly registered. Their status is that of claimants and it is a fact that a joint allotment order was issued in the name of his son Muhammad Asghar and Abdul Rashid respondent. It is also established from the record that ejectment proceedings had commenced for the benefit of the allottees. The mere fact that they were not put in possession of the property would make no difference so far as their entitlement and right for the transfer of the property in dispute is concerned. Undoubtedly, they have preferential right over a local whose ejectment was ordered several times and whose entitlement and claim for the transfer of the property in dispute stood completely extinguished.
(Underlining is mine)
(22) Mr. D.M. Awan, learned counsel for the respondent, argued that the present petition merits dismissal on the ground that Umar Din had no locus standi to file this petition as the allotment was not in his favour. This objection is without any force for as already observed by me, I have noticed the C.H. Form filed jointly by Umar Din and Abdul Rashid at page 15 of the D.S.C's. file and Umar Din as such could avail of the allotment which had been made in the name of his son. In view of this the petitioner certainly is an aggrieved person and has a locus standi to challange the orders impugned."
' As regards the allegation of forging the order, dated 3-7-1956 the first thing to be noticed is that the inquiry. in which the finding that Abdul Rashid etc. by adding the said two lines had committed the alleged forgery was recorded as well as the orders passed by the Settlement Authorities in the said proceedings were all declared to be without lawful authority and hence of no legal effect in the judgment, dated 14-11-1973. This finding was then affirmed by the Supreme Court by dismiss:ing C.P.S.L.A. No.66/74 on 21-6-1974 and then in the order dismissing the review petition on 8-1-1978.
' In view of above the so-called finding returned in the said proceedings could not have been made a basis for holding that Abdul Rashid etc. had committed the alleged forgery. It may be added here that no other evidence or material was produced before the Deputy Settlement Commissioner in the proceedings held by him after the remand and no material whatever was either referred to or relied upon in the impugned order, dated 2-9-1976. It is also of importance to note that in any case no allegation of forging the order, dated 3-7-1956 was ever raised against Umar Din petitioner and this fact was particularly noticed by the learned Judge in the judgment, dated 14-11-1973. As regards the allotment order, dated 27-11-1956 and the finding that allotment was null and void on the point that the same was passed during the subsistence of the stay order issued by the Deputy Custodian, it will be pertinent to note that this plea was admittedly available to Hakam Din in the earlier rounds of litigation but the same was never raised. Rehmatullah respondent was, however, not entitled to riase this plea for the first time in remand proceedings.
The ejectment order passed and the notices issued pursuant thereto against Hakam Din attained finality on 29-2-1960 with the dismissal of Writ Petition No. 337-R of 1959. This order was not challenged any further with the result that the matter of ejectment of Hakam Din from the house in dispute became a past and closed transaction. Again in the judgment, dated 14-11-1973 it was observed that in view of decision of this Court in L.P.A. No.401/65 rights whatever Hakam Din had, stood completely extinguished and by merely managing to stretch stay in the premises in dispute, Hakam Din neither acquired a fresh right nor his possession became authorised. All these findings which were binding on the Deputy Settlement Commissioner were not sufficient to deter him from observing and holding that the allotment order was null and void. The audicity with which the weighty observations and binding findings were ignored is not only apalling but has also the effect of erroding the confidence of the litigants in the entire judicial system. The plea that show-cause notice was not given prior to issuance of the ejectment order was not only factually incorrect but was also not available for the reasons given above. Despite all this litigation and the various challenges made how it could be urged that any further show-cause notice was required to be given or that the principle of natural justice remained unsatisfied. As regards the objections as to the validity of the allotment order, dated 27-11-1956, it may be noted that reference to stay order of the Deputy Custodian was not only uncalled for but was also misdirected, misconceived and mischievous. The stay order was passed in proceedings whereby ejectment order was challenged.
The stay was in respect of the ejectment and not with respect to the allotment of the house in question to any other eligible person. This stay order as such cannot be considered to have been violated on account of order of allotment made by the competent authority. It will, therefore, be seen that non-existing foundation was being provided for achieving the objective of excluding the petitioners from the arena. The allotment order, dated 27-11-1956 was found effective and legal in paras. 19 and 20 of the judgment, dated 14-11-1973. Still the Deputy Settlement Commissioner was bent upon in rendering the said allotment order nugatory. This was hardly open to any officer of tt,e Settlement Department.The question whether Umar Din and Abdul Rashid could avail of the notification, dated 9-9-1960 was also answered by the learned Judge of the High Court in judgment, dated 14-11-1973 by holding that it was also established from the record that the ejectment proceedings had commenced for the benefit of the allottees and that the mere fact that they were not put in possession of the property would make no difference so far as their entitlement and right to the transfer of the property was concerned. It was further held that undoubtedly they had preferential right over a local whose ejectment was ordered several times and whose entitlement and claim for the transfer of the property in dispute stood completely extinguished. In this very judgment the plea that Umar Din could not seek transfer as the allotment was in favour of his son was also repelled in para. 22 of the judgment. This finding was upheld by the Supreme Court in the appeal filed by the heirs of Hakam Din. The same view was expressed by the Supreme Court in the case of Sadiq Hussain v. Ahmad Noor 1983 SCMR 677. In the judgment, dated 14-11-1973 the question whether on account of alleged forgery in the order, dated 3-7-1956 the transfer of the house could be refused was answered in para. 23 of the judgment as under:- "In my view, these are two separate and independent questions, one deals with the criminal, liability of the person charged with and the other with his right to claim the transfer of property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In other words, the question to be examined would be if an applicant is accused of forgery, would that automatically debar him from claiming the transfer of the property for which he had applied for. Undoubtedly, such an applicant would not be entitled in law to claim any benefit which arises out of the forgery alleged to have been committed on the strength of which he could press his claim for the transfer, but if the alleged forgery or any other criminal act could be clearly separated from his right to transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, then in my view, he would be entitled to that benefit under the Statute and simultaneously liable fon the criminal act for which he may have to face a criminal prosecution and it is in order to meet this situation that sections 27 and 28 were introduced in the Displaced Persons (Compensation and Rehabilitation) Act, 1958."
'It will, therefore, be seen that the right to obtain transfer on the basis of the allotment order, dated 27-11-1956 and the ejectment order issued in pursuance thereof was upheld and a direction was passed to dispose of the C.H. Form filed by Umar Din and Abdul Rashid in accordance with law.
Hakam Din and his legal representative were excluded from the arena and in view of the findings recorded on the question of entitlement of Umar Din and Abdul Rashid there was no scope left for the Settlement Authorities to rack or reopen these questions but to transfer the house in question in favour of Umar Din and Abdul Rashid and to issue them the transfer document. The Deputy Settlement Commissioner in the impugned order acted in a most perverse manner with the design to deprive the petitioners the transfer of the house in dispute and to secure the house for the son- in-law of Hakam Din and in order to achieve, this mala fide objective the Deputy Settlement Commissioner passed the impugned order in flagrant disregard and in direct contravention of the judgments passed by the superior Courts. As regards the direction to register criminal case against Umar Din, Jan Muhammad and Abdul Rashid it is to be noted that this direction was based on the admission called out from one of the paras of the reply submitted by Abdul Rashid in Criminal Original No. 114-W of 1972. It was conveniently ignored that this criminal original was dismissed by the High Court. The allegation of forgery was raised as in a copy filed as annexure in Writ Petition No. 1980-R of 1962, the objected to lines were found added. It is pertinent to note that the learned Judge who heard the aforesaid Crl. Original, did not take any action on account of filing of the said forged copy. The explanation given by Abdul Rashid in the said reply was also not considered by the Deputy Settlement Commissioner. He found the aforesaid three persons guilty of forgery by observing that Jan Muhammad had been contesting the case all through on behalf of Umar Din and Abdul Rashid and that this gentleman appeared to be a well-read personality as he had filed self-drawn and difficult worded applications in English before the Deputy Settlement Commissioner and other Courts. From this it was concluded that Jan Muhammad was capable of understanding the import of the impugned order of the Rehabilitation Commissioner. It was further added that in view of the finding of the aforesaid inquiry coupled with the admission made by Abdul Rashid in the reply submitted, it can be safely held that the act of forgery and interpolation has been committed by Jan Muhammad within the knowledge, at the behest and for the benefit of Umar Din and Abdul Rashid. Firstly the inquiry as well as the order passed therein could not be relied upon as these were held to be without lawful authority by the High Court and the Supreme Court. Secondly, the so-called admission of Abdul Rashid was neither conclusive nor was put to him in the proceedings held by the Deputy Settlement Commissioner and as such the same could not be used for passing the impugned direction. It is apparent that this finding that Jan Muhammad had committed the forgery was based on inferences which could not reasonably be drawn from record. In any case Umar Din as well as Abdul Rashid have died in the meanwhile and as such the question of taking criminal action against them on the basis of so-called admission has also come to an end. For all these reasons the order, dated 2-9-1976 is liable to be quashed, and the same is hereby quashed.
6. Coming now to the order of transfer, dated 23-9-1976 passed in favour of Rehmatullah respondent it will be noted that transfer order is based on the form submitted on 22-2-1974 by Nazir Hussain and Rehmatullah son of Feroze Din jointly. This form was thus submitted during the pendency of C.P.S.L.A. No. 66 of 1974 which was filed on 16-1-1974. Rehmatullah in his statement, dated 23-9-1976 claimed that Nazir Hussain had left the house in July, 1971 and since then he was in exclusive possession. This was contrary to the assertions made in the joint form filed in the year, 1974. The statement of Nazir Hussain was not recorded in this respect. The Deputy Settlement Commissioner relied on the report of Record Keeper who had allegedly visited the spot and recorded the statement of Rehmatullah on 23-9-1976. It was ignored by the Deputy Settlement Commissioner that the heirs of Hakam Din had been pursuing the litigation in their own right till 1978. Their appeal before the Supreme Court was dismissed on 21-6-1974 and the review petition filed by them in the Supreme Court was also dismissed on 8-1-978. In these circumstances it is only Mr. Muhammad Arif Rana the then Deputy Settlement Commissioner who could believe Rehmatullah that he was in exclusive possession since 1971. In this connection reference may also be made to Civil Miscellaneous Applications Nos. 8 and 10 of 1972 filed in Writ Petition No. 30-R of 1971. In C.M. 8/72 Hakam Din stated in para. 5(i) that on 21-10-1971 Messrs Rashid, Rahmatullah and Shaukat Ali whose houses were adjacent to the house in dispute submitted an application to the Municipal Engineer, Municipal Committee, Gujranwala requesting him to inspect the house in dispute because the same was in dangerous condition " A certified copy of this application was attached alongwith Civil Miscellaneous 10 of 1972 as Annexure 'A'. This application is signed by Rehmatullah son of Mian Feroze Din respondent No.3. This would show that in October, 1971 Rehmatullah was admittedly living in a house adjoining the house in dispute. It is, therefore, apparent that Rehmatullah respondent No.3 cannot claim that the house in dispute was in his exlusive possession since July, 1971. For all the reasons given above the order, dated 23-9-1976 is not sustainable in law. Moreover, this order falls to the ground with the finding that the order, dated 2-9-1976 passed by the learned Deputy Settlement Commissioner is without lawful authority and ineffective in law.
7. For the reasons given above this writ petition is accepted. The orders, dated 2-9-1976 and 23-9- 1976 are hereby declared to have been passed without lawful authority and hence of no legal effect. The question of disposal of form submitted by Umar Din and Abdul Rashid shall now be taken up by the officer authorised and nominated by the Member, Board of Revenue (Settlement Wing) with the direction that the house in dispute shall be transferred to the legal representatives of Umar Din as they are the only persons in the field and have been repeatedly held entitled to seek the transfer of the house in dispute. As respondent No.3 continued the vexatious litigation started by his father-in-law and as respondent No.1 has acted in a most arbitrary manner and was instrumental in prolonging the agony of the petitioners, both of them are burdened with special cost. These respondents shall pay Rs.3,000 each to the petitioners. Legal heirs of Umar Din and Jan Muhammad petitioners shall share the costs equally.