This petition under Article 98 of the Constitution of Islamic Republic of Pakistan, 1962, is directed against the order of the Settlement Commissioner (District Judge) Mianwali, dated 22nd December, 1965, passed in Settlement Revision No.46/65, whereby he, setting aside the order dated 16-5-1963 of the Additional Settlement Commissioner, held that the disputed shop No.F/208 is a separate unit and not a portion of Ice Factory No.F/209 transferred to the petitioner and the order of the Settlement Commissioner, Mianwali, dated 22-4--1967, whereby review application against the aforesaid order was dismissed.
2. The case of the writ petitioner is that Mianwali Ice Factory, Mianwali, (hereinafter referred to as factory) was disposed of by public auction under the provisions of Settlement Laws to petitioner No.2, Haji Mehr Din, who offered the highest bid of Rs.74,000 which was accepted by the Chief Settlement Commissioner on 5-12-1962, The bid was allegedly offered on the basis of the site-plan showing the shop (room) in dispute as part of the factory. Thereafter, on 7-12-1965, a deed of association was executed between the auction purchaser petitioner No.2, and petitioner No.1 in respect of the factory. P.T.D was also issued on 20-7-1966 in respect of the whole of the factory petitioner No.2 and the transfer was made in favour of petitioner No.1 in pursuance of the said deed of association through another P.T.D. It is further stated that respondent No.1 made some application/appeal before the Additional Settlement Commissioner in respect of the shop in dispute which formed part of the premises of the factory and allegedly bearing a separate property No.F/208. The Additional Settlement Commissioner rejected the prayer of respondent No.1, by order dated 16-5-1963, with a finding that the so-called shop bearing No.F/208 was a part and parcel of the factory. The certified or uncertified copy of the order in question has not been placed on record. It is stated that the same is not available, as the original record is also missing.
3. The grievance of the petitioner is that notwithstanding the fact that the property in dispute forms part of the factory, the Settlement Commissioner, Mianwali, by order dated 22-12-1965, recorded a finding that the shop in dispute was a separate unit and not a portion of the Ice Factory No.F/209 which was auctioned in favour of Haji Mehr Din deceased, the predecessor-in-interest of petitioner No.2-A to 2-F and respondents Nos.5 to 7.
4. On the conclusion of the arguments 'by the learned counsel for the parties, by oral order dated 7-11-1988, I remanded the case to the Member, Board of Revenue Chief Settlement Commissioner, Lahore, in view of the plea raised by the petitioners that the impugned order dated 22-12-1965 of the Settlement Commissioner was violative of the principles of natural justice, inasmuch as, Abdul Wahid Khan, petitioner No.1, being an associate of Haji Mehr Din, auction purchaser, was not impleaded as a party to the revision petition. However, before writing and signing the judgment, I discovered that according to the record of the Settlement Department which was perused by me in the Court in the presence of the parties, the factory was put to auction on 9-11-1962. No one came forward to bid in the auction. Haji Mehr Din, the allottee of the factory, submitted an application offering Rs.74,000 for purchase of the factory. His offer was accepted by the Chief Settlement Commissioner, by his order dated 5-12-1962. The office note in the Settlement Department's record reads as follows.
"As desired by the S.C, (1), vide his note dated 26-11-1962, on page 77 ante, 1 have heard Haji Mchr Din through his attorney Jamal Din and recorded his statement on 4-12-1962, placed below. He is prepared to offer Rs.74,000 for the purchase of Mianwali Ice Factory, Mianwali, minus the amount Rs.20,173 incurred by him on the repairs of the above factory. This factory was put to open auction on 9-11-1962 but did not attract any bid.
Haji Mehr Din has deposited his compensation book which has sufficient amount to cover 25% of his offer i.e. Rs.53,827. SC & RC may kindly approve the sale of Mianwali Ice Factory to Haji Mehr Din on the offer made by him."
Reserve price of the factory is Rs. 50,000Sd/-(Illegible)
5-12-1962.
S.C. (I) .
May be approved.
(Nothing from P.75)
Sd/-(Illegible)
5-12-1962 C.S.C.
Approved.
Sd/-(Illegible)
5-12-1962.
S.C.(Ind)
Sd/-(Illegible)
7-12-1962.
S.B.R.
Sd/-(Illegible)
8-12-1962.
A.S.C.(I)
5 The Permanent Transfer Deed issued to the petitioner does not reflect the true state of affairs, inasmuch as, the factory was never auctioned in favour of Haji Mehr Din but approval was accorded for its sale by the Chief Settlement Commissioner. There is no mention in the said order that the room in dispute is part of the factory. In this background, it was decided to rehear the case.
Accordingly, by order dated 12-11-1988, notices were issued to the parties, record of the impugned proceedings was also requisitioned from the Settlement Department for re-hearing. Arguments heard.
6. It is an admitted fact that the disputed shop No. F/208, Mianwali, was auctioned on 27-12-1960 in favour of one Inayat Elahi. The auction was confirmed on 4-7-1961 by the Additional Settlement Commissioner, Sargodha. Later on the auction proceedings were cancelled by another Additional Settlement Commissioner by order dated 16-5-1963 on the report of the Deputy Settlement Commissioner that the shop No. F/208 was part and parcel of the factory. Respondent Maula Din challenged this order in revision and claimed transfer of the shop in dispute against his LS Form whereupon the Settlement Commissioner, Mianwali, after perusing the Settlement record, including the: survey register, set aside the aforesaid order of the Additional Settlement Commissioner and transferred the disputed shop to Maula Din respondent No. 1 on the ground that it was a separate unit belonging to one Godha Ram and the factory No. F/209 was a distinct unit belonging to one Hans Raj. He also recorded a finding of fact that the disputed shop had been shown as a separate portion in the auction list prepared during the year 1960. Haji Mehr Din was impleaded as a party to the revision petition, but he did not put in appearance. Ex parte proceedings were, therefore, ordered against him. He failed to challenge this order before the Settlement authorities. However, Abdul Wahid Khan petitioner filed a review petition eon the ground that he was a necessary party to the revision petition, but was not impleaded as such and that Maula Din respondent No. 2 herein had given a wrong address of Haji Mehr Din, who was impleaded as respondent in the revision petition, which was dismissed on 22-4--1967, being incompetent. After clearing the Settlement dues, Maula Din respondent was issued PTD on 5-8-1967.
7. Learned counsel for the petitioner has assailed the validity of the impugned orders on various grounds: first, that the impugned order dated 22-12--19(>5 of the Settlement Commissioner is violative of the principles of natural justice, inasmuch as, Abdul Wahid Khan petitioner No.1, being an associate of the original transferee, was not impleaded as a party to the revision petition and Mehr Din (deceased) was not heard before deciding the matter as no service was effected upon him due to wrong address given in the title of the revision petition. The objection raised by the petitioner can be disposed of by holding that it was for the original transferee to come forward and oppose the revision petition. He not only failed to defend the revision petition, but also did not file review petition against the order passed by the Settlement Commissioner against him and, therefore, the proceedings against him before Settlement Commissioner are not, in any manner vitiated for the reason that his address was allegedly wrongly described in the revision petition.
Furthermore, as to the alleged wrong address, it is a disputed question of fact which cannot be examined in writ jurisdiction. As regards the associate Abdul Wahid Khan, a is true that under subsection 5 of Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it was necessary for the Settlement Commissioner to give a hearing to the associate of the purchaser, but in the peculiar circumstances of this case, this irregularity appears to be immaterial.
According to the report dated 12-4-1955 of the Deputy Rehabilitation Officer, Mianwali, certified copy of which has been placed as Annex R/3 to the written statement and the authenticity of which has not been challenged before me, the shop in dispute was a separate unit, bears a separate number, assessed separately in the record to Taxation Department and has been used as a shop since the creation of Pakistan and even before it enjoyed the same status. Kh. Habibullah has, however, disputed that before partition it was treated as a separate shop. The report, however, shows that the shop in dispute has never been in occupation of Haji Mehr Din purchaser/allottee nor there is any mention in the file of the Rehabilitation authorities that its possession was ever delivered to the allottee of the factory as a part thereof. The disputed shop was owned by Godha Ram, whereas the factory belonged to Hans Raj. Furthermore, the shop in dispute was treated as a shop and auctioned as such prior to the transfer of the factory in favour of Haji Mehr Din. This being so, the stand taken by learned counsel for the petitioners that on 1-11-1965, the written statement was filed by the Deputy Settlement Commissioner, Mianwali, in a suit filed by' respondent No. 1 for permanent injunction on 1-9-1965 against the Settlement authorities, wherein it was stated that Godha Ram and Hans Raj were the evacuee owners of the factory and the plan of the factory dated 1-6-1959 prepared by the Municipal Committee, Mianwali, includes shop No. F/208 as a part of the premises of the factory, is of no avail, inasmuch as, it merely tantamount to admission by the Deputy Settlement Commissioner but not a finding by a competent authority. This report is at variance with the earlier report dated 12-4-1955 of the Deputy Rehabilitation Officer. Furthermore, in case of two reports by officers of the Settlement and Rehabilitation Department of co-- ordinate jurisdiction, the first in point of time is to be given credence. In the circumstances, even if the associate had been given a hearing by the Settlement Commissioner, the result would not have been different and it is, therefore, not necessary to remand the case on this ground alone.
8. Kh. Habibullah, learned counsel for the petitioner next contended that the whole factory including the shop in dispute was transferred to the petitioner with approval of the Chief Settlement Commissioner. The Settlement Commissioner was, therefore not competent to review the transfer on any ground whatsoever. The contention is devoid of any force. The question whether the shop in dispute forms part of the factory was never determined by the Chief Settlement Commissioner while according approval for sale of the factory. On the other hand, prior to the sale of the factory, the shop in dispute was shown in the auction list as a separate property. It was auctioned as such with approval of the Additional Settlement Commissioner concerned and, therefore, even if directed by the Chief Settlement Commissioner, another Additional Settlement Commissioner on the report of the Deputy Settlement Commissioner could not exercise revisional or appellate powers in any manner whatsoever to interfere with or upset the order of the learned Settlement Commissioner, which was officer of co-ordinate jurisdiction. Viewed from this angle as well, the order dated 16-5-1963 passed by the Additional Settlement Commissioner treating the shop in dispute as part of the factory was without jurisdiction and of no legal effect. This view finds support from H.M.Fazl Zaheer v. Kh. Abdul Hameed (1983 SCMR 906), wherein it was held that the Settlement Commissioner cannot upset or interfere with the order of the other Settlement Commissioner of co-ordinate jurisdiction.
9. It is next contended that Maula Din respondent No. f filed a suit for permanent injunction against the Settlement Department that he was not liable to be ejected under Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as the matter was governed by Section 30 thereof. The suit was decreed on 16-11-1965. The submission is that the effect of the declaration was that respondent No. 1 accepted the petitioners as transferees of the disputed property as they sought protection of Section 30 of the Act. This contention is also deviod of any force inasmuch as the declaration was sought for against the Settlement authorities. The petitioners themselves got impleaded as party to the suit. Subsequently, the disputed shop was competently transferred by the Settlement authorities in favour of Maula Din respondent No. 1. The decree passed by the civil Court did not create any estoppel against respondent No. 1 to seek transfer of the disputed property under the Settlement Laws.
10. Learned counsel for the petitioners further contended that the learned Settlement Commissioner has failed to appreciate the entire evidence on record relevant for determining the point in controversy. I have minutely gone through the documents annexed by the petitioners to the writ petition. The plea is untenable. The question whether the shop in dispute is an independent unit or a part of the factory purchased by the petitioners is a question of fact. The fording is sought to be assailed on the pica of misreading and non-consideration of material evidence, but I find no omission or misreading of evidence nor violation of any principle of law.
11. Last but not the least, learned counsel for the petitioners vehemently contended that the definition of shop given in Section 2(12) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, excludes any portion of an industrial concern even if it is a business premises and otherwise described as a shop, especially when the factory including the disputed shop already stood transferred in favour of the petitioners and PTDs issued accordingly. Here the shop in dispute was held by the Settlement Department to be a shop. It was used and treated as such as a separate unit. It is located in a separate tenement of the building. This being so, its disposal as a shop will be in conformity with the definition contained in Section 2(12) of the Act and instructions issued from time to time by the Chief Settlement Commissioner. The same view was taken in K. S. Muhammad Nawaz Khan v. Mst. Nur Begum (1972 SCMR 413). In the precedent case, the property in dispute was composite in nature comprising of one flour Chakki on the ground floor.
The Chakki, as an industrial concern, was transferred to one party, whereas the residential portion was transferred to the other by the Settlement Authorities, who held that the two units were distinct and separate from each other. The plea taken in that case was that splitting up the premises of an industrial concern into two portions, that is to say, one as industrial concern and the other as residential premises was ultra vires of the definition of the term `house' as given in Section 2(4) of the Act. The contention was repelled. It was held that even though there was a common entrance in the verandha of the two units, yet the industrial concern had an additional independent entrance on the main road and, therefore, the transfer of one premises as an industrial concern and the other tenement as a residential unit was valid. Relevant portion of the judgment reads thus: "We also find that the learned Judges of the Division Bench have rightly taken note of the instructions issued in this behalf by the Chief Settlement Commissioner to the effect that if an industrial concern is located only in one tenement of a building then that portion only may be transferred as an industrial unit, and the other tenements are to be disposed of as independent units in accordance with the relevant provisions of the Act and the Schemes framed thereunder.
These instructions are in conformity with the definition contained in Section 2(4) of the Act."
12. In the instant case, the question whether the shop in dispute is located in a separate tenement of the building or an independent property is essentially one of fact on which the finding of the Settlement Commissioner is adverse to the petitioner. This Court cannot come to contrary conclusion without making a factual inquiry, which obviously is beyond its scope in writ jurisdiction.
The Policy and principle underlying the Act and the Schemes framed thereunder is to compensate and accommodate the maximum displaced persons and others eligible for transfer of evacuee properties. Here both the parties having been justly accommodated, the petitioners should not have asked for reversal of such an equitable order with any degree of success in the discretionary writ jurisdiction of this Court.
13. In view of the above, the writ petition fails and is hereby dismissed, but there shall be no order as to costs.
H.B.T./A-780/L Petition dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.