' The dispute in this case relates to property bearing No,9/929 situated in Mohallah Chamiaran, Siaikot City, commonly known as Serai Sheikh Sodaghar, which was owned by Beli Ram son of Gorang Ditta. The petitioners are refugees from Jammu & Kashmir and after partition, they migrated to Pakistan and occupied various portions of the aforesaid Serai which comprises of about 30 rooms 3 verandahs and a courtyard. On the advent of settlement operation, respondent No,1 who is a local and respondents Nos.2 and 3, who are Jammu & Kashmir refugees, applied for the transfer of this property. This dispute ultimately came up before the Settlement & Rehabilitation Commissioner, Lahore Division, Lahore, who in his order dated 30th May, 1963 (Annex. C) while disposing the matter observed that:- "The petitioner is a local while Siraj Din son of Kaka and Muhammad Sharif are displaced persons from J & K State. I have examined the record and find a rough plan of the property in dispute in the file. It appears to me that this property is a `Serai' or a `Katri' therefore, it should be disposed of as such in the light of the instructions on the subject. The whole case needs reconsideration and disposal on merits. The case is, therefore, remanded to the learned Addl. Settlement & Rehabilitation Commissioner who will no doubt determine the eligibility and entitlement of each party and then pass fesh orders in accordance with law."
' This order was not challenged any further and as such became final.
2. It appears that in the post remand proceedings before the Additional Settlement Commissioner, respondent No,1 on the one hand and respondents Nos.2 and 3 on the other, entered into a compromise, whereby they mutually agreed to share the property by dividing it into two portions.
The Additional Settlement Commissioner, on 29th of July, 1964 recorded the statements of the parties before him and directed the transfer of the property in terms of the compromise treating it to be a house. The case was, however, remitted to the Deputy Settlement Commissioner for demarcating two portions. This demarcation was approved on 2nd May, 1965, by the Deputy Settlement Commissioner.
3. In May, 1976 as the statutory bar on the transfer of property in possession of the Jammu & Kashmir reugees was removed by deletion of Section 35(5) of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, the petitioners applied for the transfer of respective portions in their possession. This was followed by another application dated 30th June,1965 to the Deputy Settlement Commissioner through the Deputy Director, Sialkot Region, Ministry of Jammu & Kashmir Affairs, Government of Pakistan, who strongly recommended the said application. It may be mentioned that earlier under the orders of the Deputy Settlement Commissioner, the property had been inspected by the Settlement Inspector, who submitted his report on 7th Junc,1965 that the property in question was not a residential house but was a `Serai' known as Serai Sheikh Sodaghar and the Settlement and Rehabilitation Commissioner in his order of remand dated 10th April, 1963 had directed that the property being `Serai' should be disposed of as such in the light of the instructions on the subject. An order was passed on this report by the Deputy Settlement Commissioner on 28th June, 1965 that all the occupants he summoned.
4. It appears that in the meantime, the demarcation of property by the Deputy Settlement Commissioner made on 2nd March, 1965 was challenged by respondent No,1 by filing a revision which was dismissed on 12th March, 1966 as being not maintainable as impugned order was open to appeal. Respondent No,1 thereafter filed an appeal which was dismissed as being barred by time by the Additional Settlement Commissioner on 28th July, 1966. He went in revision but remained unsuccessful as the same was rejected by the Settlement Commissioner on 17th March, 1967.
5. Respondent No,5 thereafter filed a Constitutional petition in this Court (Writ Petition No 605/R/67) which was admitted to regular hearing. The present petitioners applied for being impleaded as parties by filing an application (C.M.No,3/73) which was allowed on 2nd July, 1973 and the petitioners were impleaded as respondents. The aforesaid constitutional petition was, however, disposed of in the absence of petitioners on the basis of a compromise arrived at between the respondents inter se, on 2nd August, 1973. According to the petitioners, they were neither summoned at the time of disposal of the Constitutional petition nor had they notice about the compromise arrived at between the respondents, After having learnt about the same, they filed an application for review complaining that no compromise could be attested nor the constitutional petition could be disposed of in their absence. During the pendency of that review petition, respondents 2 and 3 disposed of the property transferred to them by alienating it in favour of respondent No,4.
6. That review petition came up for hearing before this Court on 12th December, 1977 and was disposed of with the observations that if the petitioners have any independent right, they can seek the redress of their grievance in accordance with law. The relevant observations may be reproduced as under:- "This is an application for review against a compromise entered into between certain parties to the writ petition. The arguments have been heard. The compromise entered into between the parties in the writ petition is effective only between them and parties outside the ambit of the agreement are not bound by that. They can seek redress in accordance with law. This review petition is disposed of."
7. It needs to be noticed that the petitioners had applied under the reconstituted Settlement Scheme No, 8 for the transfer of portions in their possession but they were informed by the Deputy Settlement Commissioner on 16th March, 1974 that as the matter was pending in the High Court, their forms shall be kept pending till the decision of the review application. However, without waiting for the disposal of the review petition, these forms of the petitioners were rejected on 23rd January, 1976.
8. The present Constitutional petition was filed by the petitioners on 5th June,197S wherein they have assailed the orders dated 29th July, 1964 of the Additional Settlement Commissioner and the orders passed by the Deputy Settlement Commissioner on 2nd March, 1965 and 28th June, 1965 and the transfer of the property in favour of respondents Nos.1 to 3.
9. The petition has been contested by the respondents who have filed separate written statements.
10. The learned counsel for the petitioners has contended that the property in question was admittedly a Serai and as such should not be transferred as a house to the respondents. It was pointed out that the Settlement Commissioner in his order of remand dated 13th May, 1963 had observed that as the property was a Serai it be disposed of in accordance with the instructions on the subject, but unfortunately the Additional Settlement Commissioner transferred the property treating it to be a house to the respondents in violation of the order of remand. Reliance has been placed by the learned counsel upon Muhammad Sultan Mir etc. v. M. Yousuf Hussain Dada etc. (1984 SCM R 533).
11. On behalf of the respondents the arguments in main were addressed by Syed Zamir Tirmizi, Advocate. He contended that the property in question though described as Scrai was not being used as such at the time of partition and, therefore, it could not be transferred or treated as Serai.
Reference was made to Assessm ent Register of the house tax of Municipal Committee, Sialkot, in the year 1928 (Ex.D.9) and the statement made by Siraj Din son of Din Muhammad before the Deputy Settlement Commissioner (F.3). The learned counsel also objected that the petition badly suffers from laches inasmuch as no appeal or revision was filed by the petitioners against the rejection of their forms and it was only in 1973 that they applied for being impleaded as parties to the litigation. It was contended that even a void order has to be challenged within limitation. The learned counsel cited S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another (1978 SCM R 367) in support of this contention. The other argument raised by the learned counsel was that the petitioners have no locus standi to file the petition, as they did not apply for transfer of the property, they cannot object to its transfer to the respondents. Reliance was also placed on Sh. Mansoor Ahmad v. Faizul Hassan and 8 others (PLD 1983 SC 167). Similar arguments were advanced by Syed Munir Hussain, Advocate, for respondents Nos. 2 and 3 and Mr. Khan Muhammad Bajwa, Advocate, for respondent No, 4.
12. After hearing the learned counsel for the parties and perusing the available record with their assistance, it becomes evident that the orders passed by the Settlement Authorities whereby the property has been transferred as a house to the respondents are not sustainable and this petition merits acceptance.
13. As noticed earlier, both respondents Nos. 1 and 2 had applied for the transfer of the property in question as a house and the dispute between them, finally came before the Settlement Commissioner, who while remanding the case on 30th May, 1963 had observed that the property appeared to be a Serai and had to be disposed of in the light of the instructions on the subject. The case was consequently remanded to the Additional Settlement Commissioner, to determine the entitlement of each party and to pass fresh orders in accordance with law. Unfortunately, when the matter came up in the post remand proceedings before the Addl. Settlement Commissioner, he proceeded to dispose of the property on the basis of a compromise arrived at between the parties before him again treating it to be a house. Strangely enough, no heed was paid to the order of the Settlement Commissioner dated 30th May, 1963 whereby the property was to be disposed of as Serai or Katri in the light of the instructions on the subject. This order of the Settlement Commissioner was never challenged any further and had as such become final. Neither the parties nor Additional Settlement Commissioner could bypass or ignore it. That being so, the argument of the learned counsel for the respondents that although the property was described as a Serai in the different records, but as it was not being used as such, at the time of partition it could not be treated as a Serai or Katri falls into insignificance. The question regarding nature of the property stood foreclosed by the order of 30th May, 1963, which had attained finality and was even accepted by the respondents participating in the post remand proceedings. The judgment cited by the learned counsel for the respondents, namely, Mst. Amina Begum represented by Legal Heirs v. Sh. Muhammad Nazir and others (PLD 1985 SC 260) has, therefore, no application to the facts of the present case.
14. Another fact which needs to be noticed is that the Additional Settlement Commissioner had been directed by the Settlement Commissioner to examine the respective merits of the parties and to dispose of the property in the light of the instructions on the subject. Unfortunately, neither of these directions were given effect to. The Additional Setlement Commissioner instead of determining the entitlement of the parties relied upon the compromise arrived at between them, whereby they agreed to share the property. While allowing this compromise, the Additional Settlement Commissioner appears to have been oblivious of the direction contained in the order of remand that the property had to be disposed of in the light of the instructions relating to the disposal of these properties.
15. As regards the disposal of Serais, it is settled law that a Serai is neither a house nor a shop within the meaning of Section 2 of the Displaced Persons (Compensation & Rehabilitation) Act, but as it consists of number of houses and shops, the same must be disposed of as a separate unit.
Memorandum No,4498/R/Reh.60 dated 9/10th March, 1960, issued by the Chief Settlement Commissioner, lays down the procedure for transfer of Serais. The Supreme Court of Pakistan in Muhammad Sultan Mir etc. v. M. Yousuf Hussain Dada etc. (1984 SCM R 533) was pleased to observe that the word 'may' as used in the aforesaid memorandum was mandatory in character and where a Serai consists of more than one house or shop, it is not to be disposed of as one single residential or commercial unit. In this view of the matter, the order transferring the Serai as a house to respondents Nos. 2 and 3 as a house was clearly without lawful authority and of no legal effect.
16. Another serious illegality committed by the Settlement Authorities while transferring the property to the respondents is that the portions of property in possession of the petitioners who are all Jammu & Kashmir refugees were transferred to respondent No, 1 who is a local. Such a disposal of the property is wholly void and has no existence in the eyes of law. It was also so held by the Supreme Court of Pakistan in Muhammad Sultan Mir etc. v. M. Yousuf Hussain Dada etc. (1984 SCM R 533) and All Muhammad v. Hussain Bakhsh and others (PLD 1976 SC 37). In the last mentioned case, it was observed by the Supreme Court that such a transfer would be in excess of jurisdiction and the party adversely affected by it could go in appeal or revision against such an order and would not preclude it from challenging the illegality in the High Court. These two authorities are on all fours with the present case and are applicable with full force.
17. The contention of the learned counsel for the petitioners that as the case of the petitioners suffers from laches, they could not be granted any relief, cannot be accepted in view of the authority of the Supreme Court of Pakistan in Pakistan Post Office v. Settlement Commissioner and others (1987 SCM R 1119), wherein it was observed that a Constitutional petition cannot be thrown out on the ground of laches, without examining the merits of the case. As noticed earlier, the transfer of a Serai comprising of about 30 rooms 3 verandahs and a courtyard in favour of the respondents as a house is clearly without jurisdiction and void and on no hypothesis can such a transfer be maintained.
18. It is also to be seen that the petitioners had all along been agitating against the transfer of this property to the respondents. After the deletion of subsection (5) of section 30, they had applied fortransfer of the property. This was followed by subsequent applications under Settlement Scheme No,8 but unfortunately in the first instance, the petitioners were informed on 16th March, 1974, that no action can be taken on their forms as their application for review was pending in the High Court. Subsequently, however, these applications/forms of the petitioners were rejected by the Settlement Commissioner on 23rd January, 1976, although, at that time, the review application was still pending and an order directing maintenance of status quo had been passed. As the matter was pending before this Court in review, the petitioners justifiably did not agitate against rejection of their forms at that time, but when the review petition was disposed of on 12th December, 1977, they filed the present petition. In these circumstances, it cannot be said that the petition suffers from any laches or is even otherwise. I am guided in this respect by the authority of the Supreme Court in Muhammad Sultan Mir (supra), wherein in the similar circumstances, the transfer in favour of the respondents was held to be per se void. In that case the property was ordered to be transferred to the appellants before the Supreme Court, who were displaced persons from Occupied Jammu & Kashmir State, notwithstanding the fact that they had not filed the requisite forms for the transfer of the property to them. In fact the Supreme Court directed that the forms should be obtained from them. (Also see Ali Muhammad v. Hussain Bakhsh and others (PLD 1976 SC 37).
For the reasons aforesaid, this petition is allowed and the impugned orders of the Settlement Authorities are declared to be without lawful authority and of no legal effect. The Notified Officer shall now proceed to determine the entitlement of the respective persons in possession of Serai and transfer the same to them, in accordance with law. No orders as to costs.