' Mst. Shamim Begum, daughter of Mst. Sardar Begum (petitioner in W.P.No.201/R of 1981) has moved this Constitutional petition against the respondents praying therein that the order dated 11- 8-1976 (Annexure 'G') and the transfer order mentioned in Annexure 'H' be declared without lawful authority and of no legal effect. It was further prayed that respondent No.1 Deputy Settlement Commissioner, Lahore, be directed to dispose of the NCH form filed by the petitioner on merits.
Muhammad Akram (petitioner in W.P. No.203/R of 1981) has also moved this Constitutional petition against the respondents. He has filed LH form for the transfer of the property in question. He has made a grievance that he was a party to the proceedings and as such, he has not been heard.
Since both the petitions relate to the same subject-matter, therefore, I proceed to dispose them of by the same consolidated order.
2. The brief facts of the case are that house No.C/1676 was initially transferred by the Settlement authorities in favour of Mst. Anaran Begum alias Anwar Begum on 18-5-1960 (Annexure 'A') by the Deputy Settlement Commissioner. The learned officer observed that the house appears to be indivisible as there was only one entrance. He further stated that Mst. Anwar Begum alias Anaran Begum was a claimant and had submitted CH form for its transfer in her favour. Mst. Dilshad Begum, the predecessor-in-interest of Iftikhar Ahmad, respondent No.6, went in appeal which was accepted and the case was remanded for fresh decision vide order dated 10-6-1965 (Annexure 'B') of the Additional Settlement Commissioner, Lahore. The petitioner's mother Mst. Sardar Begum, being a non-claimant displaced person, filed her NCH form on 29-9-1966 (Annexure 'C') for the transfer of the house as the same was lying available. In the year 1967, on remand, the Deputy Settlement Commissioner concerned took up the case and started proceedings. It was noted by the Deputy Settlement Commissioner vide his proceedings (Annexure 'D') that Muhamad Sharif had filed LH form bearing No.639, Imtiaz Ahmad had filed form LH bearing No.739, the petitioner's mother Mst. Sardar Begum submitted her NCH form bearing No.41761 and then Muhammad Riaz filed his LH form bearing No.4414. However, these proceedings did not come to some logical conclusion. It is further apparent that Mst. Anwar Begum entered into an agreement of association with Khalid Ali Khan whose legal representatives have been brought on record as respondents Nos.
2 to 5. Mst. Dilshad Begum, Mst. Anwar Begum and Khalid All Khan submitted applications vide Annexures 'E' and 'F' to the Deputy Settlement Commissioner praying therein that the case be disposed of expeditiously. The learned Deputy Settlement Commissioner without issuing any notice to the petitioner and without disposing of her NCH form transferred the property in question to Mst.
Anwar Begum, Khalid Ali Khan and Mst. Dilshad Begum vide his order dated 11-8-1976 (Annexure 'G'). After the impugned order dated 11-8-1976 having been passed by the Deputy Settlement Commissioner a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was sent to the writ petitioner. Through the aforesaid notice, respondents Nos. 2 to 5 demanded the rent from the petitioner and the vacation of the property in her possession.
3. Learned counsel for the petitioner has vehemently contended that admittedly the petitioner had filed NCH form for the transfer of the disputed property under the provisions of Settlement Scheme No.VIII. It is stated that she is in the physical possession of the property since Partition and that on the basis of her possession and the submission of her application, she was entitled to the transfer of the property in question in accordance with law. It is next contended by the learned counsel that on the face of it the house in dispute is divisible for the reason that several families have been living in the disputed property since Partition without any interruption from any quarter whatsoever.
Lastly it is stated that while passing the last impugned order (Annexure 'G') it was the legal duty of the Settlement Authority to have heard the petitioners as well. The petitioners in both the writ petitions were never impleaded as a party, nor they were summoned by the Deputy Settlement Commissioner on 11-8-1976. It is submitted that the NCH and LH forms of the petitioners were admittedly available on the record of the Settlement Department and this was in the knowledged of the respondents that they were also condidates for the transfer of the house in question. The learned counsel has concluded by saying that the petitioners have been condemned unheard and have been deprived of the property without any legal justification. Learned counsel has demonstrated before me that the property in question is divisible and in that behalf reliance has been placed on the plan of the house which shows that several families are living peacefully in the house. The learned counsel further states that there is no finding whatsoever that the property in dispute is indivisible. He submitted that the Deputy Settlement Commissioner at one stage of the case, had given a passing reference saying that it appeared that the house is indivisible. On the basis of this, the learned counsel argues that the concerned Deputy Settlement Commissioner has not applied his judicial mind to the facts and circumstances of the instant case. The learned counsel for the respondents has submitted that the property in question has been declared to be indivisible and that being so, the same was rightly and legally transferred to the respondents who are the claimant displaced persons. It is submitted by learned counsel for the respondents that the writ-petitioners were not a party before the Additional Settlement Commissioner vide his order dated 10-6-1965, and, therefore, at this stage they could not be permitted to say that they were not heard.
4. I have heard the respective arguments of learned counsel for the parties at great length and have minutely gone through the record. I am of the view that the order dated 18-5-1960 passed by the Deputy Settlement Commissioner, Lahore, was an ex parte order on the face of the record. It also appears from his very short order comprising of few words that he has not applied his judicial mind to the divisibility or otherwise of the house in question. It is also apparent that he did not visit the spot to find out the actual position of the property in question. Therefore, this order of the Deputy Settlement Commissioner was rightly set aside by the Additional Settlement Commissioner vide his order dated 10-6-1965, by accepting the appeal of Mst. Dilshad Begum. In view of this factual position, there is no finding in the field to show that the property in dispute is indivisible.
After the acceptance of the appeal by the Additional Settlement Commissioner vide his order dated 10-6-1965, the whole case was reopened and it was for the Deputy Settlement Commissioner to dispose of the respective claims of the parties on their own merits. On remand, precisely the learned Deputy Settlement Commissioner noted the presence of the petitioner, Mst.
Shamim Begum at serial No.3 and he specifically noted the number of NCH form filed by her. He also noted the number of LH form filed by Muhammad Sharif father of Muhammad Akram petitoner, at No.1. After this preliminary hearing of the case, the matter appears to have been shelved for unknown reasons. Again it appers from the last impugned order dated 11-8-1976 (Annexure 'G') that the Deputy Settlement Commissioner, Lahore, did not summon the petitioners who were necessary party in the case, nor their forms were taken into consideration for final disposal. There is a lot of force in the contention of the learned counsel for the petitioners that they were condemned unheard inasumuch as they were in authorised possession of the property in question and they had filed their NCH and LH forms for the transfer of the house in question and further that the Deptuy Settlement Commissioner did not apply his judicial mind to the divisibility or otherwise of the property in question. It was the legal duty of the Deputy Settlement Commissioner to have summoned the petitioners for the disposal of their forms alongwith other claimants of the property in dispute. The Deputy Settlement Commissioner failed to perform his statutory duty in not summoning the petitioners for the disposal of their cases admittedly pending before him. Thus, the petitioners stand substantially prejudiced by the order of the Deputy Setttlement Commissioner (Annexure 'G').
5. The learned counsel for the respondents has relied upon the case of Yousaf Ali v. Fazal Mahmood Malik etc. (1970 SCMR 681). It was held in this authority that a person who is not a party before the tribunal below, has no right to be impleaded as a party in the writ proceedings. It may be pointed out that this authority is not applicable to the facts and circumstances of the case for the simple reason that the petitioners were party before the Deputy Settlement Commissioner when the case was remanded by the Additional Settlement Commissioner and the presence of the petitioners is marked by the Deputy Settlement Commissioner in the initial proceedings of the case. Learned counsel has also placed reliance on the case of Ghulam Rasool v. Settlement and Rehabilitation Commissioner (1980 SCMR 921). On the basis of this authority , the learned counsel for the respondents has contended that the property had already been transferred to the parties and as such, the same was not available for transfer. Again the aforesaid authority is distinguishable from the facts and circumstances of the instant case. In the present case the initial order of transfer was upset by the Additional Settlement Commissioner and the case was reopened and, therefore, there is no force in the contention of the learned counsel for the respondents. Learned counsel for the petitioners has placed heavy reliance on Mian Rafi-ud-Din etc. v. The Chief Settlement and Rehabilitation Commissioner etc. (PLD 1971 SC 252). Wherein the Honourable Judges of the Supreme Court of Pakistan were pleased to observe that Evacuee and Rehabilitation legislations are legislations of an extremely special character which are from the very nature of things to be construed not so much on considerations that would weigh with Court of law, but also on considerations of policy. Their Lordships observed further that they were designed for meeting an extraordinary situation of a complex and confusing nature created by the influx of a large number of refugees who had to be settled and were intended to be so adaptable as to meet the changes in the situation that developed from time to time. Their Lordships went on to observe that they could not, therefore, be construed upon strict legal principles and certainly not in such a manner as to defeat the very object for which such special legislation was designed. On the basis of this well known ruling of the Supreme Court, the learned counsel for the petitioners submitted that the petitioners had the vested right to have been dealt with in the light of the observations made in the aforesaid judgment. He submitted that the petitioners are displaced persons inasmuch as they have filed the relevant forms for the transfer of the property in question and that they were undisputedly living in the property in question since 1947. The learned counsel for the petitioners has also placed reliance on Mst. Ijaz Fatima v. Deputy Settlement Commissioner-II etc. (PLD 1978 Lahore 769) to contend that the petitioners could not be ousted from the contest on the sole ground that they were not a party before the Additional Settlement Commissioner when he accepted the appeal and remanded the case to the Deputy Settlement Commissioner. In the aforesaid authority it was held that: "The mere fact that the petitioner was not a party in the earlier litigation in the High Court, the same constituted no bar to her application being considered on its own merits in all respects, especially when the result of the order of remand was that the property uptil then stood undisposed of. In Ch. Altaf Husain etc. v. The Chief Settlement Commissioner, Pakistan (1970 SC MR 681) it was held that a form, though apparently filed late but before any transfer of property took place, could also be taken into consideration. Reference may also be made to Settlement Scheme No.VIII promulgated on 16-11-1965, which provides scope for fresh applications for 'available properties' and which Scheme could have been taken note of (for whatever worth it was for all concerned) after the orders of this Court in the earlier writ petition. I hold accordingly."
' Respectfully following the law laid down in the above noted authorities, I have come to the conclusion that the petitioners were a necessary party before the Deputy Settlement Commissioner and they were not dealt with in accordance with law. As observed earlier, the petitioner Mst. Shamim Begum, is a non-claimant displaced person and Muhammad Akram petitioner is a local person and both are in possession of the property in dispute, and they have duly submitted their NCH and LH forms for the transfer of the same. That being so, the petitioners had the vested right of being heard.
6. The result of the above discussion is that the impugned order dated 11-8-1976 (Annexure 'G') passed by the Deputy Settlement Commissioner, Lahore, is declared to have been passed without lawful authority and of no legal effect leaving the parties to bear their own costs. The case of the parties shall be deemed to be pending before the concerned Settlement authority.
' The notified officer under the provisions of the Displaced Persons Evacuee Laws Repeal Act, 1975, is directed to dispose of the case of the parties within a period of one week positively.