1. MUHAMMAD HALEEM, C.J.-- Two separate buildings bearing Nos. S-36-R-46 and S-36-R-48 standing on two separate survey numbers and known as Amrat Dhara Building, Railway Road, Lahore, were treated as a big mansion by the Settlement Commissioner by his order dated 3-8- 1960, and advertised for auction in the issue of Pakistan Times dated 21st of July, 1960.
2. Syed Shabbir Hussain claiming to be a displaced person from Ambala and to be an allottee of a residential portion of the property bearing No. S-36-R-46, and entitled to its transfer under Settlement Scheme No.1, filed a writ petition No.390-R of 1960, on 9th of August, 1960, but as the writ petition came up for hearing on 12-8-1960, the auction had already taken place and the writ petition was disposed of as having become infructuous. One Shaikh Muhammad Muslim gave the highest bid and was declared the purchaser of the big mansion. Syed Shabbir Hussain thereupon filed a writ petition No.441 of 1960 impleading the Chief Settlement Commissioner and the auction purchaser Shaikh Muhammad Muslim to challenge the order of the Settlement Commissioner declaring both the buildings as big mansion and succeeded as the writ petition was allowed and the High Court which setting aside the order treating the two buildings as big mansion held that the two buildings bearing Nos. S-36-R-46 and S-36-R-48 as independent units standing on separate survey numbers. This judgment was not challenged and it assumed finality.
3. The first and the second appellants were also in possession of substantial property bearing No. S- 36-R-46 while the appellant No-3 was running a clinic in a portion of separate property bearing No. S-36-R-48. The second appellant filed a CH Form for the transfer of the portion of the property bearing No. S-36-R-46 in which Ajmal Dawakhan is situate. The appellant No.3 also filed NCH Form for the transfer of the shop comprised in building No. S-36-R-46. He also filed a CH form for the transfer of the shop comprised in building No.S-36-R-48. After the judgment in writ petition No.441 of 1960, the Deputy Settlement Commissioner demarcated the properties and transferred the entire property No. S-36-R-46 to the respective occupants including the appellants Nos. 1 and 2. As for the portion of the property bearing No.S-36-R-48 in possession of the appellant No.3, it was not disposed of as it became the subject-matter of dispute in the High Court in writ petition No. 1196-R of 1968. Appellants Nos.1 to 3 and other transferees of property bearing No. S-36-R-46 were finally issued Permanent Transfer Deeds (PTD) in respect of the portions transferred to them. However, the portion bearing No.S-36-R-48 housed the Amrat Dhara Pharmacy, which was being run by appellant No.3. In pursuance of the notice published in the Pakistan Times dated 14-12-1959, this portion was listed for auction.
4. As would appear from the report at page 200 of the main paper book, only machinery was proposed to be auctioned but neither the building nor the land. One Muhammad Abbas A.I Mansoori was shown to be the allottee of the building. In the auction held, the highest bid of Rs.2,400 for the machinery was given by Muhammad Hussain which was not accepted by the Settlement authorities as it was below the reserve price and the auction was cancelled.
5. Respondent herein negotiated the sale of the machinery for Rs.5,000 which was accepted and by letter dated 3-2-1960, he was ordered to be put "in possession of the concern", instead of the machinery sold as per inventory prepared at the premises. In implementation of this order Jalil Ahmad, an Industries and Rehabilitation Inspector on 4-2-1960 handed over possession of the machinery sold and also made a note of the fact that "the entire building of the above mentioned boundaries is in occupation of Shahbuddin, Hakim Mohammad Nabi Khan, Hakim Haji Shams-ul- Haq, Hakim Inayat Elahi and Mohammad Abbas A.I Mansoori." This was followed by another letter dated 20-11-1965 from the Chief Settlement Commissioner addressed to respondent wherein it was stated that a portion of the property bearing No. S-36-R-48 had been finally transferred to him and a PTD was issued on 20-11-1965 wherein not only the machinery but also a portion of the property No.S-36-R-48 described as Amrat Dhara Pharmacy was shown to have been transferred against a price of Rs.5,000.
6. It appears that on 10-11-1960, the respondent wrote a letter to the Settlement Department for demarcation. In the reply dated 3-12-1960 to that letter the Secretary, West Pakistan, Industries Rehabilitation Board, and Additional Settlement Commissioner (Industries), Lahore, informed him that it was only the machinery which was sold to him and that "the premises being a part of the big mansion cannot be disposed of as a separate unit alongwith the machinery." In case he was not prepared to accept the machinery, the sale would be revised and cancelled. The respondent thereafter followed it by another application dated 14-12-1960 addressed to the Secretary, West Pakistan Industries Rehabilitation Board, Lahore but this too was answered in the same terms as the earlier communication. He thereupon filed writ petition No. 136 of 1961 which was disposed of alongwith writ petition No.441-R of 1960 in which the High Court only held that the two buildings bearing Nos. S-36-R-46 and S-36-R-48 were separate units.
7. On 29-12-1965, Settlement Commissioner Industries exercising the powers of the Chief Settlement Commissioner issued a notice to the respondent to appear before him on 18-1-1966 in connection with the case regarding the transfer of the premises of Amrat Dhara Pharmacy.He was also asked to produce documentary evidence in support of his case, and in case of default the case would be decided ex parte. The respondent thereupon filed a criminal miscellaneous No.9 of 1966 on 15-1- 1966 in the High Court against the Settlement Commissioner (Industries), Additional Settlement Commissioner (Industries) and Industries and Rehabilitation Inspector seeking an appropriate action for contempt under Article 123 of the Constitution read with the provisions of Contempt of Courts Act, as in his view the notice was issued in violation of the judgment of the High Court in writ petition No. 136-R of 1961. This matter came up before the learned Chief Justice and he dismissed the application on 17-1-1966 holding as under: "It would appear from the perusal of the petition and my order that the emphasis given was on the building consisting of two independent units. I had dictated the order in open Court, and the only relief that I granted was that the building consists of two units, namely, building bearing survey No. S-36-R-48 and the building bearing survey No. S-36-R-46. I had not granted any relief as to what was transferred to the applicant before me. If the applicant was not satisfied with my order he could have gone in Letters Patent Appeal."
8. Clearly, therefore, his entitlement to the transfer of the premises was not determined as alleged.
9. After the dismissal of the contempt application, the respondent filed writ petition No.260-R of 1966 to challenge the issue of the notice dated 29th of December, 1966 purported to be under section 20
(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In this petition Hakim Muhammad Nabi Khan was arrayed as a respondent alongwith the Settlement Commissioner (Industries) and his wife Mehr Jehan Begum was impleaded by order dated 16-6-1967 as they had applied for the transfer of this portion by filing CH Forms. This petition was dismissed by order dated 6th of June, 1968, and it was held as under: " I am of the view that the claim to the transfer of the property was not directly and substantially in issue between the parties in the first writ petition. It was never heard and finally decided. No relief was granted to the petitioner by way of mandamus in order to enforce such a right. Thus, the present writ petition would not be hit by the doctrine of res judicata.
10. As I have already observed above that only a notice has been issued to the petitioner by the Settlement Commissioner (Industries) whom the petitioner has to satisfy as to what property was transferred to him, there is no question of forgone conclusion involved in this case."
11. And further: "I have scrupulously avoided to say anything on the merits of the petitioner's entitlement in this order, though it was seriously contested by the Settlement Department, and in support of their contention they produced the Settlement files. These files, with this aspect of the case, will have to be examined by the Settlement Commissioner."
12. The result was that the entitlement of the respondent was left open to be determined.
13. The respondent filed a Letters Patent Appeal No.153 of 1968 against this judgment but that too was dismissed by order dated 27th of June, 1968. The case was minutely examined by the Letters Patent Bench and in its detailed judgment, it held: Counsel has in the above connection also argued that the view taken by the learned Single Judge that the High Court has not decided the question as to whether any part of the property bearing No.48, was transferred to the appellant is not correct. We have tried to understand this criticism with the help of the judgment of this Court on the basis of which the view has been expressed by the learned Single Judge and we are in respectful agreement with it. The learned Single Judge has rightly pointed out that the High Court's decision is to the effect that the two buildings could not be treated as one big mansion. There is no decision to the effect that any portion of building No.48 was transferred to the appellant. There is a statement of the cases of the parties in the judgment, but that is not the decision of the High Court."
14. Leave was sought against this judgment through civil petition for leave to appeal No. 357 of 1968, which too was dismissed on 12-11-1968. It will here be relevant to refer to the concluding part of the order of the Court, which is as under: "We are unable to see any point in this leave petition except the uneasiness on the part of the petitioner to undo the notice issued to him by the Settlement Department which merely required that the petitioner should disclose his credentials as the transfer of the property in dispute. The learned Single Judge has directed that the entitlement of the petitioner should be duly examined and we see no apparent reason why the petitioner wants to avoid this examination. The grievance of the petitioner at this stage is baseless and premature."
15. The order dated 1-11-1968 of the Settlement Commissioner at page 17 of the record (Part 11) shows that the matter was examined in the light of the assertions of the respondent. And the documents placed before him by the respondent and it was ordered that a show-cause notice be issued as to why his PTD should not be cancelled and he was given seven days time to submit his reply to the show-cause notice. The notice was issued in the exercise of suo motu powers of revision. Against this direction of the Settlement Commissioner respondent filed writ petition No.1196-R of 1968 on 7- 12-1968 against the Chief Settlement Commissioner and the Settlement Commissioner, but did not implead respondents Hakim Inayat Elahi and Mst. Mehr Jahan Begum. Hakim Inayat Elahi by order dated 28-7-1969, and Hakim Mohammad Babi Khan and Mst. Mehar Jehan Begum by order dated 28-10-1969, were impleaded as parties. The High Court held that the Additional Settlement Commissioner had acted beyond his jurisdiction in issuing the show-cause notice after the issuance of the PTD as he was left with no power to modify it after the omission of rules 6 and 7 of the Permanent Transfer Rules with effect from 27-12-1964 and that in this view of the matter if the PTD had been wrongly obtained on account of "some misrepresentation or fraud" although the property was never sold, the proper forum for necessary declaration would be the Civil Court and not the Settlement Authority who had no jurisdiction whatsoever after the property had gone out of the compensation pool. Thereafter, leave of this Court was sought against the above judgment of the High Court and leave was granted in terms to examine the propriety of the High Court's order in view of the earlier decision of the High Court for the examination of the entitlement of the respondent which was upheld by this Court while refusing leave to appeal against that judgment of the High Court, which held the field.
16. The dispute beyond doubt concerns the premises of the Amrat Dhara Pharmacy in building No. S- 36-R-48. This was advertised for auction and according to the report only machinery was proposed to be auctioned. Nonetheless not only the machinery but also the premises were transferred for a paltry consideration of Rs.5,000 and by communication dated 3rd of February, 1960, he was ordered to be put into possession of the concern which not only included the machinery but also the premises. Again as a result of the communication of the Chief Settlement Commissioner dated 20-11-1965, he was issued' a PID on 20-11-1965.
17. The dispute commenced only when he applied for demarcation of the property and it was then disputed by the Settlement Department that it was only the machinery which was negotiated for sale and not the premises of the Amrat Dhara Pharmacy. Thereupon, the contesting respondent filed a contempt application which was dismissed by the learned Chief Justice holding that the decision in the two petitions (Nos.441-R/60 and 136-R/61) was only confined to the treating of the two buildings as a big mansion without determining the entitlement of the respondent. Not being satisfied with this order, the respondent again filed writ petition No. 260-R of 1966 pleading therein not only the finality of the PTD but also fraud of an Inspector of the Department who was instrumental in raising the controversy as to the transfer of the premises in his favour as he was motivated to obtain illegal gratification from him. Reference in this connection may be made to paras 7 and 8 of the petition. Nonetheless the High Court did not accept the plea of fraud or finality of the transaction and held that the writ petition was premature as the department had yet to determine the entitlement of the transfer of the premises. The High Court further was of the view that there was considerable force in the plea of the department that the matter could be re- examined in exercise of the suo motu power of revision by the Settlement Commissioner. The further plea that the transfer was the result of a contract was rejected on the ground that no relief can be granted for its breach in the exercise of constitutional jurisdiction. Finally, while dismissing the writ petition \the High Court held that the entitlement can be examined by the Settlement Commissioner. The Letters Patent Appeal against this order also failed and this Court while dismissing the petition held that the entitlement could be re-examined to ascertain whether the PTD was erroneously issued. Eminently, therefore, the finality of the PTD was not accepted and while the dismissal order of this Court was in force, the High Court in utter disregard of the finality of the order of the High Court in writ petition No. 260-R of 1966 held that the Settlement Commissioner had no jurisdiction to re-examine the entitlement as the property had gone out of the compensation pool, and, for that matter, if any relief was desired it could be had by way of a suit in a civil Court.
18. Although the writ petition was filed after the issuance of the show-cause notice, the legal situation did not alter as in the earlier exercise also the object was the same, that is, to examine the documents if he had any in support of his claim. It was a preliminary hearing so as to determine whether there was any prima facie case for the re-opening of the transaction. The judgment, therefore, in the earlier writ petition No. 260-R of 1966, which was filed on the same grounds, was a bar to the granting of a relief in the subsequent writ petition. The High Court clearly fell into an error in granting the relief while ignoring the finality of the earlier judgment which was approved by this Court. In this view of the matter, no examination of the cited judgments is necessary.
19. Lastly, it was urged that as the Settlement Department had not appealed against the impugned judgment but had filed a suit, the judgment had become final so far as the Settlement Department was concerned. But this argument cannot come in the way as under Order XLI, Rule 33 of the Code of Civil Procedure as well as under Article 187 of the Constitution, the benefit of the relief can also be extended to the non-appealing party for doing complete justice, and such is the case here.