1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted in two separate petitions, to the two occupants of separate shops, to examine whether they were rightly refused the transfer of the shops in their possession, under Settlement Scheme No. VIII and their constitutional petitions against the transfer of these shops to one Mr. Latif Qadri, predecessor-in-interest of respondents 4 to 9, was dismissed on good legal grounds, Property No.S.36-R-101, Railway Road, Lahore, consisted of seven units, all shops. Shop No.6 was in actual physical occupation of Muhammad Shaft (appellant in Civil Appeal No.174/76). Shop No.7 was in physical occupation of Mehtab Din (appellant in Civil Appeal No.175/76). Latif Qadri a local was the first to apply for the transfer of these two shops under Settlement Scheme VIII. He claimed his possession over these shops since 35 years before the filing of the form. His application was disposed of on 4-7-1967 by the Deputy Settlement Commissioner by following order.
2. "Since there is no contest and the applicant (Mr. Latif Qadri) is in exclusive and undisputed possession of the portions referred to above. It has not been disposed of so far, the same is hereby transferred to him on the explicit conditions that he shall produce rent clearance certificate by 20th of this month. He shall also pay the transfer price by 30th of August, 1967 positively. In case he fails to comply with these instructions the property will be resumed under the provisions of the existing law."
3. Mr. Latif Qadri, felt aggrieved by a portion of the transfer order in his favour and he appealed to the Additional Settlement Commissioner who disposed it of on 23-10-1967 in the following words:-- "I have heard the arguments of the learned counsel for the appellant and only agree with him that the learned Deputy Settlement Commissioner was not competent to impose such condition and pass transfer and a conditional resumption order by a single order. The appeal is allowed, and the condition imposed upon by the learned Deputy Settlement Commissioner waived. The transfer price would be realised from the transferee under the usual way."
4. Mr. Latif Qadri, on payment of the price and the other dues was issued P.T.O. And thereafter P.T.D. On 27-5-1968.
5. On 4-6-1968 Mohammad Shafi, filed L.S. Form under Settlement Scheme VIII, or filed an application seeking condonation of delay in filing it, or filed both such documents. On the next day, that is, 5-6- 1968 he moved the Chief Settlement Commissioner against the illegal of this property to Latif Qadri.
6. His grievance was that he was in possession of Shop No.6 since before Partition, that Latif Qadri was neither an allottee nor in possession of any shop, that he had got transferred two shops against law. He requested that suo motu action be taken and transfer in favour of Latif Qadri cancelled and the shop transferred to him.
7. The Chief Settlement Commissioner called for a report from the Deputy Settlement Commissioner who reported on 10-11-1968 as follows- "Units No.6 & 7 are two shops out of which one shop has been in possession of the applicant Mr. Muhammad Shafi and the other shop in the possession of Mirza Mehtab Beg. These two shops have been in their possession since before partition of the country as per entries in the record of Excise and Taxation and Lahore Municipal Corporation. These two shops have been got transferred in his name by one Muhammad Latif Qadri s/o Hussain Bakhsh under Settlement Scheme NO.VIII vide DSC's order dated 4-7-1967. He is a local and PTD has since been issued to him.
8. The Settlement Inspector who visited this property has reported that Mr. Muhammad Latif Qadri is not in possession of these two shops. Mr. Mohammad Shaft has alleged in his application referred to above that Mr. Mohammad Latif Qadri obtained the transfer of these shops in the name of Mr. Mohammad Latif Qadri appears to be based on the affidavits of M/s Mehtab Din and Muhammad Afzal in which they have stated that they are the employees of Mohammad Latif Qadri and that they have nothing to do with these shops. The applicant, Muhammad Shaft Khan, appeared before him and stated that he did not give any affidavit and that the affidavit purported to have been made by Mohammad Afzal, is bogus and fabricated.
9. Under the Settlement Law one person is not entitled to the transfer of two shops. In the circumstances stated above it appears to be a fit case for suo motu revision. The application of Muhammad Shaft Khan alongwith the record of the case is submitted herewith as desired."
10. No action was taken on this report and instead the applicant was asked to seek his legal remedy.
11. On 31-8-1968 Mohammad Shafi appealed to the Additional Settlement Commissioner against the order of the Deputy Settlement Commissioner dated 4-7-1967 transferring the two shops to Mr. Latif Qadri. Not Mehtab Beg but his wife Mst. Nusrat Begum and one Naseer Ahmed separately appealed against the same order of the Deputy Settlement Commissioner. These two appeals were dismissed by the Additional Settlement Commissioner on 4-3-72 on the short ground as hereunder- "I am in agreement with the learned counsel for the respondent that this court being of an Additional Settlement Commissioner cannot review the order of the Additional Settlement Commissioner dated 23-10-1967 which is final in favour of the respondent. The two appeals are, therefore, dismissed fort want of jurisdiction."
12. The matter was taken up in revision to the Settlement Commissioner who dismissed both the revisions on 10-2-1973 on the ground that these were incompetent holding as follows- "(i) The suit property even though has been in physical occupation of the present petitioner in one of its parts, the said occupation was held with his position as a sub-tenant of the respondents predecessor who, the latter, held the suit property on a lease from the evacuee and by which lease the said predecessor held a right to sublet the property. In conformity of this position of the respondent an order dated 25-5-1950 of the Deputy Custodian Evacuee Property who cited as a basis. With the very arrangements, the present petitioner admitted to have all along paid rent to the said predecessor as ore holding constructive possession over the property.
(ii) The petitioner Mohammad Shafi did not in fact have any locus standi to challenge transfer of the property patently also because he had not filed any application for transfer of the same to him.
13. This was besides the other objection by the learned counsel for the respondents that a P.T.D.
14. Having been issued to the respondents, the matter of transfer was thus closed and could no more be questionable."
15. Both these Constitutional Petitions were contested on the ground that the appellants had no locus standi at all, as they had not applied for the transfer of the shops, had not been granted condonation of delay in filing the form and that till 1968 their admitted position with respect to the properties in dispute was that they were occupying it throughout as sub-tenants of Mr.Latif Qadri.
16. The learned Judge of the High Court held that the appellants had no locus standi and that the order of transfer passed in favour of Mr. Latif Qadri suffered from no jurisdictional defect nor was it illegal and the Settlement Commissioner justifiably refused to interfere with it.
17. Mr. A.R. Sheikh, the learned counsel for Mohammad Shafi, appellant, contended that the order passed by the Deputy Settlement Commissioner on 4-7-1967 transferring two shops to Mr. Latif Qadri was ab initio void and nullity in law and the two shops shall be deemed to be awaiting transfer and Muhammad Shafi being the undisputed occupant of it, in physical possession has the entitlement to it both under Settlement Scheme No. VIII as well as under the Residual Property Scheme promulgated after the repeal of the Displaced Persons (Compensation & Rehabilitation)
18. Act. In order to plead nullity, the learned counsel pointed out that the Deputy Settlement Commissioner was not the competent authority for transferring a property under Settlement Scheme No. VIII. It was the Additional Settlement Commissioner. Any order passed by the Deputy Settlement Commissioner transferring the property would be void and without jurisdiction.
19. Additionally, under no law relating to settlement of property two shops could be transferred to one individual. Besides, Mr. Latif Qadri had not the possession of the property under the law. He was never in possession. One shop i.e. Shop No.6 was in possession of Muhammad Shafi. The other shop, that is, Shop No.7 was in possession of Mirza Mehtab Beg since before Partition. Finally, it is contended that the transfer was obtained by Mr. Latif Qadri by fraud and forgery. He had forged the affidavit of Muhammad Shaft and Mirza Mehtab Beg in order to show them as his licensee over the shops. He has also misrepresented in his own affidavit the facts to that effect. If Mr. Latif Qadri is kept bound down to the claim that he made before the Deputy Settlement Commissioner for seeking transfer of the property on which the Deputy Settlement Commissioner transferred him the property, it is clear that it was fraudulent and forged through and through. The Settlement authorities by not examining the question of fraud have declined to exercise a jurisdiction possessed by them.
20. As regards the locus standi of the appellant and his entitlement to claim transfer of the property, the learned counsel has referred to the LS Form filed by Mohammad Shaft for which he held a receipt from the office of .The Chief Settlement Commissioner. In any case, the property being an available property and Mohammad Shaft being in undisputed possession of it, he was entitled to its transfer both under Settlement Scheme No. VIII as well as under the Residual Property Scheme and in any case locus standi in the strict juristic sense was not required for maintaining a constitutional petition as held in Mian Fazal Din v. Lahore Improvement Trust, Lahore (PLD 1969 S.C.
21. 223), Mr. Asghar A.I, the learned counsel for Mirza Mehtab Beg has also pleaded nullity of the order of transfer passed by the Deputy Settlement Commissioner in favour of Mr. Latif Qadri and on that account claimed a locus standi to prefer a constitutional petition directly in the High Court without availing right of appeal and revision etc. He has also pleaded an entitlement to the transfer of the property on the basis of undisputed possession of Shop No.7 and it being an available property both under Settlement Scheme No. VIII as well as a residual property.
22. Mr. Khalil-ur-Rehman, the learned counsel for the contesting respondent, has pleaded that if the factual background of the case is kept in view not only was Mr. Latif Qadri entitled to the transfer of these two shops as one commercial unit but also that the orders were passed competently and in view of the P.T.D. Having been issued the Settlement authorities had no jurisdiction or power to re- open the matter. It was a past and closed transaction. The appellant had no locus standi and besides on account of their persistent conduct and representation in solemn proceedings they were estopped from claiming the property as they traced their possession over it through none else than Mr. Latif Qadri as their landlord. In this connection, the learned counsel has, first of all referred to the declaration granted in respect of these two shops to Mr. Latif Qadri as an old tenant entitled to lease out the property. It was taken note of by the Settlement Commissioner though the additional evidence to bring out those facts was refused twice by the Additional Settlement Commissioner. Besides, the Settlement Scheme No. VIII as originally framed only provided one mode of disposal of property which became available for transfer under the Scheme. It was by auction. Subsequently, by amendment and substitution of a whole chapter therein provision was made for disposal of the property as under Settlement Scheme No.1 which was introduced in Settlement Scheme No.VIII by reference. The Chief Settlement Commissioner directed that applications under the Settlement Scheme No. VIII be filed before the Deputy Settlement Commissioner who on the basis of such provision in the Scheme was competent to pass the orders of transfer as under Settlement Scheme No.1. The department construed the Scheme as such and invariably the orders of transfer were passed by the Deputy Settlement Commissioner. Besides, according to the learned counsel for the respondents whatever defect, if at all any existing in the order of the Deputy Settlement Commissioner stood rectified when the matter was taken to the competent authority, namely, Additional Settlement Commissioner in appeal who had occasion to examine not only the legality of the transfer but also its propriety and the conditions attaching to it and sanctified it. The property having been disposed of in accordance with law was no longer an available property. The appellant having never made a claim within time before transfer could not agitate the matter after the P.T.D. Had been issued to the respondent. They had not filed any form.
23. The delay in filing the form was not condoned. They had in quasi-judicial proceedings before the Deputy Custodian and before the Rent Controller persistently admitted their possession to be that of tenants under Mr. Latif Qadri and in view of the decisions in Syed Muhammad Munir Shah Vs. Mst.
24. Akbar Jan (PLD 1963 (W.P.) Lahore 59) Raza Memorial Educational Society Vs. The Chief Settlement Commissioner, Karachi (PLD 1964 (W.P.) Karachi 217), Mumtaz Sultana Vs. Settlement Rehab.
25. Commr. (PLD 1964 (W.P.) Lahore 388), Nazar Din Vs. Mian Ghulam Shabbir (PLD 1966 (W.P.) Lahore 716), Salim Akhtar Vs. Naeem Rathore (1983 SCWR 304), the original tenant Mr. Latif Qadri would be deemed to be in possession and not the appellants who derived their possession admittedly through Mr. Latif Qadri.
26. It is correct that twice earlier the Additional Settlement Commissioner had declined to entertain additional evidence concerning rights in property recognized by the Custodian. The Settlement Commissioner had upheld that refusal. It is also correct that Mr. Latif Qadri in applying for the transfer of the property had not based his entitlement, or referred to any such order of the Deputy Custodian. Nevertheless, the fact remains that on appellant's appeal to the Additional Settlement Commissioner, those proceedings were referred to and a right was sought to be based on it.
27. Besides, the Settlement Commissioner as the revisional authority had the jurisdiction and had in fact exercised it in taking note of that decision and in giving effect to it. This was a power altogether different from a party's right to lead additional evidence. The Deputy Custodian had by his order dated 4-7-1967 recognized the right of Mr. Latif Qadri to be that of a tenant under the evacuee with the further right to sublease the property. Not only he was possessed of such a right to sublet the property but had in fact sublet it, as appears from the rent notes executed by the two appellants, placed on the record of the Deputy Custodian. They had also subscribed to it not only before him but also before the Rent Controller. The Settlement Commissioner was, therefore, justified in making it the basis for determining the nature of the possession of each and giving effect to it. The possession of the appellant, cannot be said to be either undisputed or derivable from any Settlement or Rehabilitation Authority or one recognised by the Custodian. The omission of the restrictive definition of possession contained in Section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by Act LV of 1973 is neither retrospective nor of avail to the appellants.
28. The voidness of the order of the Deputy Settlement Commissioner dated 4-7-1967 was pleaded before us on four grounds. Firstly, that under Settlement Scheme VIII, Additional Settlement Commissioner and not the Deputy Settlement Commissioner was the competent authority for determining entitlement. Secondly, two shops could not be transferred to one person. Thirdly, the transferee was not in actual possession of the property had never been in its possession. Fourthly, the transferee had obtained the transfer by fraud and forgery inasmuch as he had claimed possession on the basis of affidavits showing the appellants to be either his close relatives or licensees, neither of which fact was true.
29. The first ground was not pleaded before the Settlement Authorities. There is nothing in their orders taking note of such a submission. This ground was not specifically taken up in the Constitutional petition either, with the result that the parawise comments of the department are silent on this point. During the arguments in the High Court this question was certainly raised and the High Court decided it in the following words:- "This leads me to examine the last point urged by the learned counsel for the petitioners, that being, that the Deputy Settlement Commissioner was not competent in law to pass the transfer order in favour of the predecessor-in-interest of the respondents. To my mind even this contention is to be examined in the light of the locus standi of the petitioner and if I was to hold that he had no locus standi to file present petition then none of the grounds which the learned counsel urged in support of this petition would be available to him. However, learned counsel for the respondents submitted that the Deputy Settlement Commissioner was duly vested with the powers to pass the transfer order in favour of the predecessor-in-interest of the respondents, because original Settlement Scheme No. VIII which came into operation on the 16th of November, 1965. Empowered the Deputy Settlement Commissioner to transfer properties, other than the industrial concerns and cinema houses, within his jurisdiction which had not been transferred to any person. So even this objection is without any force."
30. "The order of respondent No.3 dated 4-7-1967 is ex-parte, illegal, without jurisdiction against natural justice and without lawful authority, therefore, no superstructure could have been built upon it."
31. Settlement Scheme No. VIII as originally framed PLD 1966 West Pakistan Statutes 128) provided only one mode of disposal of all available properties. It was by auction. The competent authority was defined in the Scheme unless there was something repugnant to the subject or context for the purposes of disposal under that Scheme, the Additional Settlement Commissioner of the area so far as the shops were concerned. No Provisional Transfer Order was to be issued and only Permanent Transfer Deed was to issue after the full payment of transfer price, public dues and settlement fee. This Scheme was notified in the Gazette Extraordinary on the 16th of November, 1965. The Scheme was amended extensively on 12th of September, 1966. Two features of the substituted Chapter 3 regarding disposal of available properties require attention. Firstly, while creating entitlement in favour of claimants, non-claimants and locals for the transfer of such property no reference at all was made in the Chapter to the Competent Authority. It was only in Para 10 of the Scheme that where the disposal was to take place by auction that the reference is found to a competent authority. Secondly, by reference, various paras of the Settlement Scheme No.1 were mutatis mutandis applied to the transfer of available properties otherwise than by auction. Para 8 of the Settlement Scheme No.I which has been applied by reference to disposal under Settlement Scheme No. VIII by sub-rule (5) of Rule 7 entitles the Deputy Settlement Commissioner to ascertain the entitlement of the applicant for the property. These two factors, coupled with the induction of a new entitlement conferred by revision of the Scheme, clearly indicate that the Deputy Settlement Commissioner was entitled to determine the entitlement and he having determined it, it cannot be said that his determination suffered from any jurisdictional defect.
32. As regards there being two shops and the transfer of both to Mr. Latif Qadri being against law, a reference to the definition of shop in subsection (12) of Section 2 contained a proviso which reads as follows-- "Provided that where any building or premises not so declared consist of more than one business unit, and such units are in possession of several persons, then unless the Chief Settlement Commissioner, orders otherwise, the whole of such building or premises shall be deemed to be a Shop".
33. "That the petitioner took on lease the premises in question from Lala Bhagwan Dass, in the year 1942 at Rs.65/- p.m.
34. The petitioner, after affecting some alteration in the structure of the premises sublet a portion of the said premises to (i) one Mirza Mehtab Beg of Victory Machine Work, Brandreth Road, Lahore and (ii) one Mohammad Shafi of Messrs Muhammad Afzal and Brothers, Brandteth Road, Lahore, in the year 1942 with the consent of the landlord, Lala Bhagwan Dass. The expenditure in connection with the above-mentioned alteration was incurred from the pocket of the petitioner and has not so far been realised from the owner, who is no longer in Pakistan and is an evacuee. The major portion of the premises in question is still in the actual occupation of the petitioner."
35. This fact found no mention in .The order of the Deputy Custodian but the relief which Mr. Latif Qadri was seeking from the Deputy Custodian was granted to him. There is a comment from the department on the constitutional petition on the point which reads as follows "On the first point as 'to whether the property in dispute is one shop or two shops, it is submitted that as a matter of fact the property is one shop consisting of two rooms. The shop was leased out by the evacuee owner in favour of late Muhammad Latif Qadri, the predecessor-in-interest of respondent Nos.4 to 9, who rented out it to the petitioner and Mirza Mehtab Beg. Neither Muhammad Shaft, the petitioner nor Mirza Mehtab Beg applied either under Settlement Scheme No.I or Settlement Scheme No.VIII for transfer of the shop. Under the law they could not apply being licensee of the deceased Mohammad Latif Qadri. The property in dispute, no doubt in possession of two persons is one shop and not two shops."
36. The fraud alleged was one of suppression of the decision of the Deputy Custodian, the other of fabricating and forging the affidavits of Muhammad Shafi and Mirza Mehtab Beg and claiming transfer on the basis of those affidavits. The re-production of the orders determining the entitlement of Mr. Latif Qadri makes it abundantly clear that those affidavits, even if they were on the record at the relevant time, played no part in the adjudicatory process concerning his entitlement to the transfer of the property. The order of the Deputy Custodian did but the fact remains that at the first opportunity i.e. While contesting the appeal of the appellants before the Additional Settlement Commissioner, Latif Qadri had himself brought those proceedings on record and wanted the Settlement authorities to take notice of them. Failure to mention those proceedings in the forms filed for the transfer of the property would not, in the circumstances, amount either to suppression or to fraud. Besides, it has been seriously disputed whether those affidavits at all existed at the time when Mr. Latif Qadri filed his claim. His plea was that they had been smuggled in the record in order to taint his transfer. The fact that those affidavits do not find mention in the statements of any of the parties or orders of the Settlement authorities of contemporaneous date when the entitlement of Mr. Latif Qadri was determined, would make them suspect documents. In such a situation, the re-opening of the transfer after the P.T.D. Had issued, could not be justified.
37. As regards the possession of Mr. Latif Qadri, we find recognition of it in the order of the Deputy Custodian and the sub-lessees who according to their own statements, were holding the possession over the property on his behalf and under him. In the case of Salim Akhtar Vs. Naeem Rathore (1983 SCM R 304); on the basis of earlier decisions in Atta Muhammad Vs. Taj Muhammad (1974 SCM R 346); and Faiz-ul-Haque Khan Vs. Abdul Hamid (1976 SCM R 429); it was held that possession asserted for the transfer must be in one's own right and not on behalf of another. In a more recent decision in Wallayat and others Vs. Muhammad Shafi and others (PLD 1985 S.C. 278). It was held that persons who claim no independent title or interest in possession of a property, cannot on the basis of their long possession alone, claim its transfer. The appellants admitted their possession through Latif Qadri and Latif Qadri's right to lease the property having been recognised by the Deputy Custodian, the undisputed possession would be deemed to be that of Latif Qadri.
38. The notification of acquisition of the evacuee interest in the property free of incumbrances under section 3 of the Displaced Persons (Compensation & Rehabilitation) Act, would not affect the non- evacuee interest, that of Mr. Latif Qadri, duly recognized by the Deputy Custodian and also by the two appellants themselves. For the purposes of transfer under Settlement Scheme No. VIII, such an undisputed possession would create an entitlement to claim its transfer.
39. Considering all aspects 9f the case, we find that the transfer in favour of Latif Qadri satisfied all the requirements of law and the Settlement authorities were justified in not interfering with it. The appellants could have no locus standi to enter the arena and claim such a property. Both the appeals are without merit and dismissed with costs.