This judgment shall also dispose of Writ Petition No. 2001 of 1986.
2. In this Constitutional petition Muhammad Yamin the petitioner has brought under challenge an order dated 5-6-1982 passed by the Administrator (R.P) Lahore Division, Lahore, declaring that the shop in dispute in possession of respondent No. 1 was an independent, separate, self-contained shop which had not been disposed of so far and was still available for disposal. It has also been held that respondent No. 1 who was the applicant being in possession since before 1-1-1976 was entitled to retain it under R.P. Scheme, and he was allowed to file R.P. Form under the said Scheme meaning thereby that the delay in the submission of the said form was condoned.
3. The facts giving rise to this writ petition the correctness of which was not disputed by the learned counsel for both the parties in brief are as under:-- The shop in property No.S-III-3-S-2 Kabir Street, Urdu Bazar, Lahore, was temporarily allotted on 2- 9-1948 to one Allah Diya deceased predecessor-in---interest of the present petitioners.
Subsequently on 16-6-1949 the said shop was regularly allotted to said Allah Diya. This Allah Diya died leaving behind his two sons namely Muhammad Yamin and Abdul Hakim predecessor-in- interest of petitioners No. 2 to 10. On the commencement of settlement operations under the Displaced Persons (Comp: & Reh) Act, 1958, a CH form was submitted by Muhammad Yamin and Abdul Hakim under Settlement Scheme No.1 framed under the said Act for transfer of this shop to them. The Deputy Settlement Commissioner through order dated 6-12-1959 transferred this shop to Abdul Hakim and Muhammad Yamin jointly. In pursuance to which a formal P T O dated 14-3-1960 bearing No. 373390 was issued in their favour. At the time of transfer of this shop there was no construction over this shop. Subsequently on 4--6-1963 P.T.D. Was also issued to them. The transferees submitted an application to the Municipal Corporation, Lahore for sanction of building plan for construction of Chaubara over this shop. This plan was sanctioned by the Municipal Corporation vide Annex: `E & E/1'. This shop was rented out to respondent No. 1 for a period of fifteen years. Respondent No. 1 executed a rent note in favour of the said transferee on 31-5-1961 which was duly registered. According to the said rent note the tenancy was to commence from 1-6-1961.
The rate of rent settled between the parties was Rs. 100 per month.
Subsequently respondent No. 1 claimed that there was an agreement of sale between him and the transferees according to which he paid an amount of Rs. 25,000 as earnest money against a receipt allegedly issued by the owners and the sale deed was to be executed and registered later on and the price was to be settled at that time. He also claimed that there was some agreement between the parties for reference of their disputes to Arbitrator in case there was any. On 19--5- 1976 respondent No.1 filed an application under section 20 of the Arbitration Act, for filing the arbitration agreement in Court and for making reference to the Arbitrator to deliver his award on the disputes between the parties. On the other hand the petitioners lodged an FIR on 3-4.-1976 alleging that respondent No.1 had forged the said receipt showing payment of Rs. 25,000 as earnest money and also made an application to the Martial Law Authorities in this connection for taking action against respondent No. 1. However, on 24-7-1977 the parties agreed that the dispute between them be resolved through Panchayat. In pursuance to this settlement respondent No. 1 withdrew the application on 25-7-1977 from the Court moved by him under section 20 of the Arbitration Act. The matter was taken up by the Panchayat which gave decision on 28-7-1977. The plea of respondent No. 1 that an agreement of sale was executed between the parties was not found to be correct, therefore, his this claim was not accepted. According to the decision of the Panchayat respondent No. 1 was given three years time to vacate the premises.
4. Long after the repeal of Settlement Laws, in the year 1977 respondent No. 1 made an application to the Settlement Authorities that Chaubara over the shop being an independent unit which was still undisposed of be transferred to him. On 20-7-1977 the Secretary (Urban) Board of Revenue wrote a letter treating the said Chaubara as an independent unit and still undisposed of, as such, available for transfer. Aggrieved of this letter the present petitioners filed Writ Petition No. 808/R of 1980 in this Court. This writ petition was accepted through judgment dated 8-3-1981, and the findings recorded by the learned Judge are reproduced below for facility of reference: "I have been shown copy of the order (Annex-D) by which the plan submitted by the petitioners to raise construction on top of the shop was approved. I have no reason to disbelieve this. On the other hand, learned counsel for the respondent wishes me to rely on the entry made in some despatch register. Petitioners were transferred the shop in dispute and no one challenged this transfer until all settlement laws were repealed."
Respondent No. 1 filed ICA No.167 of 1981 and simultaneously also filed CPSLA No. 689 of 1981 in the Supreme Court of Pakistan against the judgment dated 8-3-1981 passed in the said writ petition.
From the order passed on 30-11-1982 in the ICA it appears that the same was kept pending in view of CPSII having been filed in the Supreme Court. The petition filed before the Supreme Court was, however, dismissed on 13-7-1988. Respondent No. 1 did not thereafter take the matter any further in review. Anyhow it was stated by both the learned counsel that review petition No. 46 of 1988 was filed by the Settlement Department in the Supreme Court which is still pending. When questioned learned counsel for both the parties informed me that pendency of the said review petition and the points raised therein have no relevancy for disposal of this writ petition which can be disposed of without waiting for the decision of the Supreme Court in the review petition.
5. On 18-4-1981 'respondent No. 1 made an application to the Administrator of Residuary Property for transfer of a shop which according to him was available for disposal as the same was still undisposed of. -He made prayer that the delay in filing the application for transfer of the said shop may be condoned. This application was sent to D.S.C. To process the matter. The learned Deputy Settlement Commissioner sent for the report of the Settlement Inspector. On 22-7-1981 Settlement Inspector made a report that the shop transfer of which was being claimed by respondent No. 1 had already been transferred and was not an available property. This report when came up for consideration before the Deputy Settlement Commissioner, the latter visited the spot. The parties were heard and he recorded a finding in his report dated 5-5-1982 that the shop was not available for transfer and transmitted the same to the Administrator. The Administrator, however, on 5-6- 1982 held that the shop was available for transfer and passed the impugned order.
6. Learned counsel for the petitioners argued that the impugned order dated 5-6-1982 is based on grave mis-reading, mis-construction and non---consideration of the material on record. He also maintained that the impugned order is wholly without jurisdiction as the Administrator was not vested with any power to disturb the finality attached to the order dated 6-12-1959 through which the shop was transferred to petitioner No. 1 and Abdul Hakim deceased respecting which PTD had already been issued on 4-6-1963. He also urged that the part of the said shop could not have been held and treated to be an independent shop on the assumption that it was included in the shop after removing the wall in between them as the material on the record does not support this assumption which has been based on mere conjectures and surmises and the impugned order has been passed with mala fide intention to benefit respondent No. 1 with his collusion. And amounts to slicing away a portion of tie shop transferred to the petitioners long before in which respondent No. 1 was admittedly his tenant having taken the same on rent for fifteen years.
7. It was not disputed that the shop transferred to petitioner and his brother Abdul Hakim was rented out to respondent No.1 for fifteen years through rent note dated 31-5-1961 the execution of which was not denied by the learned counsel for respondent No. 1. From the impugned order it appears that the case of respondent No.1 before the Administrator was that he was physically in possession of two shops out of which one was rented out to him by the petitioners and the other one on the southern side was taken by him from one Aziz-ud-Din on pughri through receipt dated 1-1-1960 issued in his favour by Aziz-ud-Din acknowledging the payment of the said amount on pughri and in order to make it a bigger shop he removed the wall in between these shops. From the impugned order it is clear that it was also pleaded by respondent No. 1 before the Administrator that this Aziz-ud-Din was in possession of another shop which was transferred to him and he surrendered his rights in the said shop in favour of Ghulam Mustafa who amalgamated the same in his property No.S-III-3-S-4 by raising fresh construction. The Administrator inspected the spot and observed that there was sign of removal of wall in the shop in dispute from which it was assumed that they were in fact two shops which were converted into one shop after removing the wall and he was also influenced by the fact that the frontage of shop in dispute was 20 feet wide whereas the other adjoining shops had frontage of 5-1/2 feet to 9-1/2 feet in width. For this reason it was assumed that one out of the two shops of Aziz-ud-din which was allegedly taken on Pughri by respondent No.1 was amalgamated in the shop of the petitioner, -which was rented out to respondent No. 1 after removing the wall in between the two, therefore, it was held that this portion of the shop of the petitioner was undisposed of and available for transfer.
8. I have considered the arguments of the learned counsel for the contesting parties. Mian Muhammad Iqbal Bhutta, Advocate, adopted the arguments of learned counsel for respondent No.1. It is evident from the order passed by the DSC on 2-10-1962 regarding rent distribution of property that the property was divided into six portions consisting of five shops and one miscellaneous portion and that the rent of the entire property was Rs. 28 per month. This rent was distributed among the said six portions tansferees in the following manner:--
(1) Shop Muhammad Azam 6/8/-
(2) Shop Muhammad Ramzan 2/1/-
(3) Shop Abdul Karim 2/8/- transferred under Scheme No. 1.
(4) Shop M/s Abdul Hakim Muhammad gamin 6/8/-
(5) Shop Ghulam Mustafa 3/-/-
(6) Misc. Portion 2 rooms & courtyard Bashir Ahmad 7/8/- Total Rs. 28/-/ It is manifest from this order that this distribution of rent was made among these six portions which stood transferred. Such an order was required to be passed under the law as it then stood so as to determine the price to be paid by transferee of each portion. The effect of the impugned order passed by the Administrator is that the property has been treated to consist of seven portions. This finding could not be given by the Administrator without doing violence and interfering with the finality of orders through which the property was held to consist of six portions by the Settlement Authorities when it was transferred to various occupants. In order to determine whether a particular property or a portion thereof was still undisposed of, the only basis in the first instance was to examine the4,orders disposing of the property by the Settlement Authorities and then come to the conclusion whether the same was available or not. The Administrator, as is clear from the impugned order, has not cared to take into consideration the record of the property and the various orders passed by the Settlement Officers regarding transfer of different portions of the property to different occupants. The Administrator had no jurisdiction to go behind the orders passed under the Act by the Settlement Authorities in which it was held that the property was consisting of five shops and residential portion by the D.S.C. Through order dated 2-10-1962 while distributing the rent, amongst the different portions of the property including the shop of the petitioner. If the shop of the petitioner which was alleged to be comparatively bigger was less in rent in distribution as compared to the other similar shops which resulted in charging less transfer price from him, the grievance should have been to the transferees of the other portions who could agitate that as compared to the petitioners they have been made to pay more price of smaller portions transferred to them but certainly it was not a ground for the Administrator to hold that since the front of the shop of the petitioners was larger than the other shops, therefore, they were to be assumed as two shops. Similarly merely because there were signs of removal of wall inside the shop of the petitioners, was no ground in itself to assume that there was a portion of property available for transfer as undisposed of property without determination whether the said portion allegedly included in the shop after removal of wall was itself available for transfer as undisposed of property or not. Even if it was assumed that there were signs of removal of wall it was not by itself a proof that another portion which was allegedly included was still available for transfer. The Administrator as a matter of fact proceeded on the assumption as if Aziz-ud-Din had two strops in his occupation one of which was transferred to him, the rights in which he surrendered in favour of Ghulam Mustafa and the other shop was amalgamated in the shop of the petitioners which was taken on Pughri by respondent No. 1 and this was done after removal of wall in between the two.
There is no basis for this finding as according to the judicial orders such as order dated 2-10-1962 passed by the D.S.C. As noted above the property consisted of six portions. Even respondent No. l abandoned this line of argument realising his difficulty that Aziz-ud-Din's possession over two shops could not be established. The case of respondent No.1 before this Court as argued by his learned counsel and as has also been made out in the written statement was that out of the only one shop with Aziz-ud-Din half of the same was given on Pughri to respondent No.1 in the year 1960 and the other half was surrendered by him in favour of Ghulam Mustafa. This argument carries the germs of its own defeat inasmuch as if Aziz-ud-Din was in possession of only one shop which was transferred to him, there would be no question then of any shop or portion of the same being undisposed of and available so far as the Settlement Department was concerned. It would have been a matter between Aziz-ud-Din, respondent No.1 as Pughri-holder and the petitioner. So far as Settlement Department was concerned on this assumption even, it has become functus officio when the transfer of the entire property has already been made. The argument of the learned counsel for respondent No.1 that the findings recorded by the Administrator on the basis of spot inspection are findings of facts which could be arrived at by him, and are immune from challenge in constitutional jurisdiction, for the foregoing reasons has no substance. The various portions n which the property was divided for the purpose of transfer could be of different sizes and there was no justification in assuming that a portion having bigger frontage should be treated as consisting of two portions. The case made out by respondent No. 1 in this Court that m the shop in dispute was included half portion of that shop which was transferred to Aziz-ud-Din which the petitioners allegedly took on Pughri does not stand established which plea is also against the Settlement record.
9. Learned counsel for respondent No, 1 when questioned admitted that Chaubara over the shop has been constructed on the entire area of the shop. That being so the conduct of respondent No.1 in not raising objection when that Chaubara was being constructed on the ground that the petitioners had no right to raise construction over that portion of the shop which according to him was given to him on Pughri by Azaz-ud-Din is sufficient to belie his stand. This omission on the part of respondent No. 1 is very significant and is sufficient proof of the fact that the story -made out by him was false. This fact coupled with the fact that in year 1977 when respondent No.1 made an application for transfer of this Chaubara to him as undisposed of property did not make an application that the portion of the shop allegedly given to him on Pughri by Aziz-ud-Din was also undisposed of. Had it been so respondent No.1 would have applied for the transfer of the same who was very eager to retain the shop with him as he falsely made out a case that the shop in dispute was agreed to be sold by the petitioners to him for which he allegedly paid an amount of Rs. 25,000 as earnest money to him. A person who was making hectic efforts in having the shop of the petitioner by making out a false case of sale would not keep quiet and would have sought transfer of that portion of the shop which was allegedly taken by him on pughri from Aziz-ud-Din. Even in the application made by the petitioner before the Administrator, a copy of which is attached as Annex: `L' it was not a plea raised by him that he took shop on Pughri from Aziz-ud-Din and that the same was amalgamated by him in the shop in dispute which was rented out to him by the petitioner. Respondent No.1 also made an application for transfer of property No.S-III-3-S-6 on 2-9- 1964 in which against the relevant column requiring the applicant to mention if any other accommodation allotted or occupied by him was in his possession, respondent No.1 stated `nil'. The Administrator has also ignored the report of the DSC dated 4-5-1982 which was a detailed report which also dealt with the question of removal of the wall in which he observed that there were no signs of portion of wall except that there was a line of fresh cement appearing from the roof to downward which did not mean that the wall was demolished. The DSC inspected the spot earlier to the Administrator. This finding of the DSC is in line with the argument of the learned counsel for the petitioners that at the time of raising construction of Chaubara over the shop, the roof of the shop was given support from inside by raising temporary wall. The DSC before submitting the report also held inquiry and examined Ghulam Mustafa to whom Aziz-ud-Din surrendered the shop which was with him. Ghulam Mustafa stated before the DSC as reported by him that he had purchased the full shop of Aziz-ud-Din. It was stated by the DSC that respondent No.1 did not produce Aziz-ud-Din to support his version. This report which had dealt with all the matters having material bearing upon the disposal of the case was altogether ignored which was certainly a material present on the record which could not be kept out of consideration, and , it is a case of non--consideration of the material on the record.
10. Learned counsel for respondent No.1 referred to another report by the Inspector of Settlement Department dated 7-3-1982. I have examined this report. He has stated that this report was being submitted in pursuance to the order of the DSC dated 8-3-1982. The report is dated 7-3-1982, and it is not understandable as to how this was prepared one day earlier than the order of the DSC dated 8-3-1982 in pursuance to which it was alleged to have been made. This report appears to have been made in collusion with respondent No. 1 and is based almost on the same reasoning on which the Administrator has based his impugned order. In this report the shops have been shown of different sizes having different frontage. Shop No. 1 in this report has been shown to have front of 14.
Feet in width. If a shop can be of that much width of frontage in the same property the other could also have the width of 20 feet. This report, therefore, is of no help to respondent No.1 for the foregoing reasons that at the relevant time the property was declared to be consisting of five shops and one residential portion and, as such, it was conclusively established that no portion of the property was available for transfer as undisposed of property.
11. The application moved by the respondent No. 1 was as a matter of fact counter-blast to the ejectment petition filed by the petitioner against him on 15--10-1980. The effort of respondent No.1 was to circumvent the ejectment proceedings and to avoid the same as long as possible and was moved with mala fide intention to grab a portion of the shop which was rented out to him by the petitioner.
12. Faced with this situation learned counsel for respondent No.1 argued that the impugned order is an iterim order merely condoning the delay in filing the R.P. Form, therefore, the writ petition at this stage was not maintainable, according to the law declared by the superior Courts. The argument has no force. In the impugned order a finding has been recorded that the portion of shop of the petitioner was available for transfer as undisposed of property, therefore, this finding so far as it relates to rights of the petitioner is adverse to him and is final against him, therefore, he could maintain the writ petition and he cannot be non---suited because final order of transfer consequent upon the impugned order in favour of respondent No.1 is yet to be passed. Even otherwise if an authority initiates proceedings, which are on the face of the record without jurisdiction, according to well settled law the person who is required through a notice to appear and defend those proceedings could maintain the writ petition that the assumption of jurisdiction of transfer of proceedings was without lawful authority and therefore, be quashed.
13. For the foregoing reasons this writ petition succeeds. It is accepted with costs. The proceedings taken by respondent No.2 on the application filed by respondent No. 1 on 10-4-1981 seeking transfer of a portion of shop in dispute as available property and the impugned order dated 5-6-1982 passed by the Administrator (RP) are hereby declared to have been taken and passed as without lawful authority and of no legal effect and are quashed. Since respondent No. 2 acted highly arbitrarily and in an irresponsible manner against all judicial norms it is directed that he shall bear the costs.
14. In the connected W.P.No. 2001 of 1986 respondent No. 1/petitioner has challenged the orders dated 17-7-1985 passed by the learned Rent Controller accepting the application of respondent No.1/petitioner for eviction of the petitioner from the shop in dispute and order dated 13-3-1986 passed by the learned Addl: District Judge dismissing his appeal against the said order of eviction.
Respondents Nos. 1 to 10 in the said writ petition filed ejectment petition against the petitioner Muhammad Siddique seeking his eviction from the shop in dispute on the ground that the same was required by them to set up their own business in good faith. This eviction petition was contested by this writ petitioner in which in defence a plea was raised that he was tenant under them qua one shop whereas the other shop in his possession belonged to the Settlement Department for transfer of which his claim was pending before the Settlement Department. The learned Rent Controller framed the following issues:--
(1) Whether the respondent is a tenant in the whole of the disputed property under the petitioners ?
OPA
(2) Whether the petitioners require the disputed property for their personal use and occupation bona fide ? OPA
(3) Relief.
After recording evidence the learned Rent Controller through order dated 17-7-1985 accepted the ejectment petition. He recorded a finding that the writ petitioner Muhammad Siddique was tenant under the respondents and that the same was required by them in good faith for their personal use. This order was challenged in appeal by the writ petitioner which was dismissed through order dated 13-3-1986.
15. Learned counsel for the petitioner has been heard. He was unable to convince me that the orders of both the Courts below suffer from mis-reading, non-reading of evidence or that concurrent findings of fact suffer from any illegality or jurisdictional defect so as to render them as without lawful authority. The orders are based on elaborate and careful appraisal of evidence produced in the case. The case of the petitioner that the shop in dispute was a total of two shops was rightly held to have not been proved. This plea of the petitioner has also been rejected in the other writ petition disposed of by this judgment. No case has been made out for interference in the impugned orders in the constitutional jurisdiction. The writ petition fails which is hereby dismissed with no' order as to costs.
16. The petitioner requested for grant of some time to vacate the premises. Learned counsel for respondent No.1 agreed that the ejectment order shall not be executed for one month so that the petitioner may arrange for some other premises for his business. In view of this concession the petitioner is hereby granted one month time to vacate the premises.
H.B.T./M-1410/L