ORDER HAZ1QUL KHAIRI, J:- Munawar Naimat, petitioner, in Constitution Petition No. D-754/90 has moved two applications, being Misc. No.312 of 1991 under Order 47 rule 1 C.P.C, for setting aside the impugned judgment dated 18.10.1990 passed by a Full Bench of this Court reported in P.L.D. 1991 (January Part) Kar. 1, and the other being Misc. No.313 of 19'U under section 151 C.P.C, for issuance of corrigendum to the title of the said judgment.
2. It may be slated that this petition was taken up, heard and decided along with two other petitions bearing Nos.795 and 166 of 1990. In all these three petitions, the President's Order dated 6.8.1990 dissolvid the National Assembly of Pakistan and dismissing the Federal Cabinet was challenged. In Misc. No.312 of 1991, the main thrust of arguments of Mr.Naimat Moulvi, learned counsel for the petitioner, is that the President of Pakistan could not have invoked his powers under Article 58 (2)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 k mg a creation of the Constitution (Eight Amendment) Act, 1985, which act further ruled that property cannot be put to auction without determining claim of a person entitled to its transfer under paragraph 1 of the Schedule. The dictum of the Supreme Court appears to have been completely overlooked by the statutory functionaries in the course of the impugned proceedings which are thus rendered void being contrary to law and in excess of jurisdiction.
5. In the present case the transferee was a claimcnt displaced person from Jammu & Kashmir.
Therefore, under the law houses in occupation of displaced persons from occupied Jammu and Kashmir could not be given to any other person. Reference may be made to the decision of the Supreme Court reported in Muhammad Sultan Mir etc. Versus M. Yousuf Hussain Dada etc.; PL1 1975 S.C. 223. f>. The P.T.O, never having been set aside in lawful proceedings after hearing the transferee, it continued to hold good for the whole house.
7. At this stage. Mr.Sadiq Hayat Khan Lodhi, learned counsel for the Settlement Department, expressed his concern regarding the compensation pool lest there may not be a shortfall in payment of the price. It is being contended that the amount due has been paid. However, notwithstanding this contention, I direct the Settlement Department to examine the question of payment of transfer price and should there be a shortfall, the legal heirs of the tranfcrce of the whole house undertake to pay the same. The case is, accordingly, remanded to the Notified Officer for following purposes:-
(i) He shall demarcate tc properly No. 8-VIII-93-S/20, Chah Pachwara, Mo/ang Lahoe. In the presence of the legal heirs of the petitioner.
(ii) He will examine the question of payment of transfer price after associating the legal heirs of the petitioner and giving them proper opportunity to substantiate their version of payment. If some amount is legally worked out to be due, the legal heirs would pay the same. After fulfilment of these requirements the legal heirs of the petitioner will be issued a transfer order within six weeks on being furnished with a copy of this order.
S. The direction with respect to the lime limit shall be faithfully complied with and a report of compliance submitted to the learned Registrar of this Court for inlormaton.
9. Learned Counsel for the petitioner, complains that it is a pity that a dispute of this nature has consumed a period of 3i2 years. He furhtcr complains that a civil suit as to the possession of the courtyard is pending in the Court of Mr. Shahid Naseer, learned Civil Judge, Lahore, and Allah Knows when that would be decided.
10. I am minded to direct the learned District Judge, Lahore, to ensure that if necessary the case may be heard from day-to-day and disposed of without tail within next two months so that legal heirs of deceased educationist can live in peace and free from liliuatinn.
3. Alter hearing the learned counsel for the petitioner and the Settlement Department I do not thind there is an need to further go into the unnecessary details for the simple reason that a clear picture has emerged on the face of the record. I had, in this case, asked the Member, Board of Revenue (S&R) to depute a counsel to defend and Mr. Sadiq Hayat Khan Lodhi, Advocate, has appeared with the record. He is unable to deny the factual position that a PTO for the whole properly was issued in favour of late Umar Hayat on 15.1.1960. He i* also in no position to deny the fact that subsequent tranfer in favour of Mst. Nazir Begum was made behind the back of the PTO holder in respect to 2/3rd of the same property. This illegal exercise purportedly left l/3rd portion for Umar Hayat. The reason for taking back this portion from the lady as recorded by the Settlement Commissioner in his revisional order was that she was nowhere to be found to be in possession of the house or any portion thereof, lt was in these set of circumstances that 2/3rd portion was cancelled and its disposal through auction.
4. I have reached the irresislablc conclusion that the impugned orders are liable to be declared void and without lawful authority, inter alia, for the following reasons.-
(a) That once an order of determining the entitlement of the predecessor- in-interest late Umar Hayat was passed and PTO in respect of the whole house had been issued in his favour, his rights Could not be P.1 to peril in collateral proceedings. The determination in favour of the petitioner had thus attained finality in law. It was, therefore, not open for the Settlement Commissioner to go behind these proceedings.
(b) A residential premises called a house is covered by section 2(4) of the Displaced Persons (S&R)
Act, 195S. Is It proviso empowers the Settlement Authorities to declare a house which consists of more than . One residential unit and is in possession of several persons to be more than one house through division. In case where the conditions precedent for the exercise of jurisdiction are found to exist or shown to have been fulfilled, only then such a power can be exercised otherwise not.
(c) For the purpose of exercising the power of division the residential premises must consist of more than one unit which should be in possession of more than one persons. These pre-conditions not having been fulfilled factually or in law there was no jurisdiction vested in Settlement Department to slice away a portion from the petitioner's properly, ln fact no such order is shown to have been lawfully passed by any functionary under the settlement laws.
(d) That as laid down bv the Supreme Court in the case of Azimullah v. Chiel Settlement Commissioner (1968 SCMR 175) evacuee house can be disposed of by public auction under para 6 of the Schedule lt) the Displaced Persons (Compensation & Rehabilitation) Act. 1958, only if no person claims it under any of the earlier paragraphs, lt was agree with the learned counsel for the petitioner. There is no satisfactory proof of the mala i.e on the part of the respondent in the matter of the transfer of the petitioner. The Chief Minister of a Province being the Chief Executive, it cannot be said that he had no authority to approve or disapprove the transfer of a teacher employed in the Province. The learned counsel for the petitioner has not been able to lay hands on any provisions of law/case law, in support of his contention. Further more, the petitioner is liable to be transferred any where in the Province. She cannot claim his posting at a particular place as a matter of her right. The impugned order does not suffer from any jurisdictional defect.
5. For what has been said above, there being no merit, the writ petition is dismissed in limine.