' The dispute relates to transfer of godown forming part of property No,SE-9R-37, Brandreth Road, Lahore. This property consists of 2 shops and 4 residential units.
2. Ground floor of one of the residential units was possessed by the petitioner and used as a godown, while Bashir Khatoon was occupying the first floor of the same and residing therein.
3. On the commencement of settlement era, the petitioner filed CS form allegedly seeking the transfer of the godown while Mst. Bashir Khatoon filed CH. Form. The Deputy Settlement Commissioner, while holding that this unit was commercial-cum-residential and was situated in predominantly commercial area, found it to be indivisible and transferred as a shop to the petitioner on evaluation basis. CH form of Mst. Bashir Khatoon was rejected. This is vide order, dated 31-12-1959. A PTO was issued to the petitioner for this unit (godown on the ground floor + residential portion on the first floor).
4. An appeal was filed by Muhammad Ismail, respondent No,2 (since dead and now represented by his L.Rs,) before Additional Settlement Commissioner assailing order, dated 31-12-1959, wherein, besides impleading petitioner herein as a respondent, three other persons, transferees of different portions of Property No,SE-9R-37, were also arrayed as parties. Against the petitioner, his grievance was that he "actually applied for the transfer of a house in Ram Gali, Lahore. He has other evacuee properties with him as well". His own plea for the transfer of the entire property was as under:--- "That the appellant has preferential claim over the respondents in the matter of the transfer of the entire property in that he is regular allottee, occupant of major portion, obtained the segregated shop in auction as well at a bid of Rs,1,58,000 and one shop already stands transferred in his name."
5. This appeal came up before Mr. J.D. Malik, Additional Settlement Commissioner on 2-4-1960 and was dismissed, inter alia by holding that Muhammad Ismail, respondent No,2 had done without the godown for the last so many years, and at the moment it was being used by a different allottee (petitioner herein).
6. Another appeal, filed by Mst. Bashir Khatoon (occupant of residential portion on top of the godown) then came up for bearing before the same officer on 23-6-1960 which was accepted and the flat was ordered to be transferred to her. He did not stop there and proceeded to consider as to whether the godown (which already stood transferred to the petitioner vide appellate order, dated 2-4-1960) should be "left" with him or not. He formed the view that the petitioner had through his "CS" form applied for the shop (in Ram Gali) as well as this godown and that the entries regarding the godown were made in CS form subsequently. He observed that the petitioner wishes to forego the shop and retain the godown, but considering the same as "afterthought", a direction was issued that the godown be put to auction.
7. Muhammad Ismail respondent No,2, who had lost his appeal, filed a revision before the Settlement Commissioner claiming the transfer of the disputed godown. Likewise, a revision was filed by the petitioner against the order of Additional Settlement Commissioner, dated 23-6-1960, directing disposal of the godown through auction. Both these revision petitions were not put up together for decision. The revision petition of Muhammad Ismail was dismissed by Khan Farzand Ali Khan, Settlement Commissioner, on 17-8-1960, observing that it was for the D.S.C. To deal with the godown in accordance with policy and instructions of the head office.
8. It transpires from the record that the D.S.C., thereafter, transferred the godown to Muhammad Ismail on 28-12-1960.
9. The revision petition of the petitioner, alongwith a revision by Bashir Khatoon, came up for consideration before Khan Farzand All Khan, S.C. On 6-6-1961. Both the revision petitions were dismissed. While doing so, the Settlement Commissioner directed that the transfer of godown to Muhammad Ismail was not sustainable. Accordingly it was put in pool for auction.
' A second revision was filed by the petitioner before the Chief Settlement Commissioner, wherein besides Muhammad Ismail, Mst. Bashiran Khatoon was impleaded as party. On 12-10-1961 a deed of compromise between the parties and Mst. Bashiran Khatoon was filed. Counsel for the petitioner made the following statement: {{URDU TEXT}} ' This statement was endorsed by the counsel for Mst. Bashiran Khatoon. The learned Chief Settlement Commissioner, same day, i,e, 12-10-1961, passed thy following order:--- "In view of the above statements, the revision is dismissed."
10. It would be seen that no effective order was passed by the Chief Settlement Commissioner, setting aside the order of Khan Farzand Ali Khan, Settlement Commissioner, dated 6-6-1961, whereby the godown was ordered to be put to auction. Furthermore, Muhammad Ismail was not a party to the compromise between the petitioner and Mst. Bashiran Khatoon. This should have been the end of litigation before the Settlement Department, in so far as the petitioner is concerned.
However, that was not to be.
11. On 17-10-1961, an application for "clarification" of the order dated 12-10-1961 (dismissing the revision of the petitioner) was moved by the petitioner before Malik Fateh Khan, Chief Settlement Commissioner, to the effect that the said order be deemed to mean that the claim of Mst. Bashiran Khatoon to the extent of godown stood rejected, and the petitioner be held to be the transferee of the same. This application came up for disposal before another Chief Settlement Commissioner, i,e, Mr. Sultan Muhammad Khan, on 28-12-1961, who granted total relief to the petitioner and held that the order dated 12-10-1961 by Malik Fateh Khan be read as that godown, instead of going to the auction pool, should "go" to the petitioner, while flat to Bashiran Khatoon.
12. Significantly, Muhammad Ismail, again, was neither party to the application, nor heard by the Chief Settlement Commissioner, before he passed this order.
13. In pursuance of this order, PTD qua godown was issued to the petitioner on 4-4-1962.
14. It is the case of Muhammad Ismail, respondent No,2, that he had also filed a second revision before Chief Settlement Commissioner against order of Khan Farzand Ali Khan dated 6-6-1961, whereby his claim qua the godown stood rejected. Copy of memo of revision petition is Annexure "H". There is an order of Chief Settlement Commissioner on it about its dismissal in default dated 7- 11-1962. It appears that this revision petition was restored on 7-11-1962 vide "H/1". This revision petition remained dormant/unattended to for a very long time, and in the meantime three applications were moved by Sh. Muhammad Shard (not party to this case), the petitioner and Muhammad Ismail for distribution of rental value of the two adjoining Properties Nos.SE-9-R-37 and SE-9R-39. The Deputy Settlement Commissioner, on 12-1-1978 disposed of these applications, holding that godown stood transferred to the petitioner and PTD had also been issued to him.
15. On 4-11-1978, respondent No,2 moved a petition under section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) praying for disposal of his revision petition "pending" before Chief Settlement Commissioner. This application was sent to Settlement Commissioner vide letter dated 26-5-1980 (Annexure K/1), for "making thorough investigation in respect of the alleged pendency of revision petition and its disposal after hearing the concerned parties if it is found to be yet pending."
16. Finally, the matter was placed before Mr. Masood Hassan Oureshi, Administrator (R.P.), Lahore, on 5-12-1982. He, by an elaborate order, held, inter alia, that the petitioner not having filed CS form for the godown stood eliminated and that the godown being appurtenant to Shop No, 37, which had been transferred to Muhammad Ismail, the order of the D.S.C. Dated 28-12-1960 transferring the godown to him (Muhammad Ismail) would hold the field and the transfer documents of the godown in favour of the petitioner were to be treated as void.
17. The petitioner, through the present Constitutional petition, has challenged the vires of this last order, dated 5-12-1982.
18. It is, inter alia, contended by the learned counsel for the petitioner that: (i) No second revision petition, alleged to be filed by Muhammad Ismail,.; was pending adjudication and the impugned order, passed on such a nonexistent revision merits to be quashed; (ii) in any case, record not having been called for, in the revision of Muhammad Ismail, before the target date, i,e, 13-1-1962, no decision on its merits was called for, and it should have been formally ordered to be consigned to record; (iii) P.T.D. Having already been issued to the petitioner way back in 1%2, the disputed godown could not be taken away from the petitioner through the order impugned herein; and (iv) in any case, the petitioner not having been impleaded as a party in the revision petition within time, no adverse order should have been passed qua him.
19. In elaboration of the points noted already, learned counsel submitted that the mere fact that for a strikingly long period of fourteen years, respondent No,2 kept quiet and did not take steps for decision of his second revision petition, proved that he did not file it at all and it was smuggled into record later on. No action was called for on it and it should have been filed as such. Assuming that the revision had remained pending for such a long period, record not having been called for before 13-1-1962, it should have been dismissed as such.
20. Learned counsel has drawn my attention to reply of respondent No,2 to para. 15(2) of the writ petition, wherein it is stated that since the record of the two connected revision petitions had been summoned before the target date, it should be presumed that the record in this revision petition (by respondent No,2) had also been summoned. According to him, this amounted to an admission that record had not been summoned.
21. As regards non-impleadment of the petitioner in the revision petition, it is pointed out that notice on the application of respondent No,2 in this behalf was issued for the first time on 11-6-1980, long after the repeal of evacuee laws and this being a futile effort, no adverse order qua the petitioner could be passed.
22. On the contrary, it is argued by Mian Nisar Ahmad, Advocate, learned counsel for respondent No,2, that, in fact, second revision filed by the petitioner had remained pending throughout, for no fault on the part of respondent No,2, and he cannot be penalized/non-suited due to inaction on the part of the concerned authority to dispose it of. According to him, this is question of fact, which having been adjudicated upon by the Chief Settlement Commissioner through the order impugned herein, in favour of respondent No,2 cannot be raised in writ petition. He has explained that respondent No,2 has been involved in protracted litigation by the petitioner in respect of a shop in this property purchased by him (respondent No,2) through auction and the matter was finally decided by the Supreme Court of Pakistan on 17-11-1976, when the auction was upheld in his favour. Record of the property was not available in the Settlement Department till 1977 and he suffered from handicap to apply for disposal of his second revision. As regards the "admission" on the part of respondent No,2 about non-summoning of record, it is submitted that in fact record had been summoned in connection with the second revision of respondent No,2 before the target date.
He argued that it is well settled that mistaken admission on a question of fact was not binding on party. He has placed reliance on Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 at 317. In the alternative, it is submitted that record having been called for in the connected revision petition, the present revision merited decision on merits.
23. As regards non-impleadment of the petitioner in the disputed second revision, before the repeal of evacuee laws, it is submitted that the petitioner, having finally lost the case to retain/claim the godown in question by virtue of order of Khan Farzand Ali Khan, Settlement Commissioner dated 6-6-1961, as affirmed on 10-12-1961 by Malik Fateh Khan, C.S.C., stood completely ousted from the contest and, therefore, the revision petition filed by respondent No,2 against "State" only was competent as such, as the petitioner no longer remained necessary/proper party. Even if no application had been moved for impleadment of the petitioner, it could not be said to suffer from such an infirmity which would call for its dismissal as such, without adjudication on merits.
24. In my view, there is no merit in this writ petition. There is no denying the fact that on 23-6-1960 Mr. J.D. Malik, Additional S.C. Had ordered that the godown be put to auction. Petitioner challenged this order through revision which was dismissed by Khan Farzand Ali Khan, Settlement Commissioner, on 6-6-1961. The second revision was dismissed by Chief Settlement Commissioner on 12-10-1961. It is true that an understanding/compromise had taken place between the petitioner and Mst. Bashiran Khatoon to the effect that the petitioner would retain the godown while the flat over it would be left with the lady respondent, and a formal deed of compromise was filed in the Court and statement made accordingly but the fact remains that this compromise was not approved by the Chief Settlement Commissioner and neither the orders of Settlement Commissioner and Additional Settlement Commissioner disentitling the petitioner qua the godown were set aside, nor the revision was disposed of in terms of compromise and an effective order of transfer of godown passed in his favour.
25. A private compromise between the petitioner and Mst. Bashiran Khatoon, unapproved as it was, could not bind the Settlement Department nor could it be concluded that mere placing of the compromise on record, followed by a statement in support thereof had resulted in acceptance of the second revision by the petitioner. This revision had in fact, been dismissed by the Chief Settlement Commissioner on 12-10-1961 in the following terms: "In view of the above statement, the revision is dismissed."
' It is sometimes afterwards that on realizing the true import of the above order, whereby his right qua the godown stood finally foreclosed, the petitioner devised an ingenious plan to retrieve the situation by moving an application dated 17-10-1961 before Mr. Sultan Muhammad Khan, another Chief Settlement Commissioner, seeking "clarification" of order dated 12-10-1961, to mean thereby that the godown thus stood transferred to the petitioner and the flat to Mst. Bashiran Khatoon. This application was illegally accepted "in exercise of powers as Chief Settlement Commissioner for review" by the said officer on 28-12-1961 and relief, as prayed for, was granted. Power of review was not available to the Chief Settlement Commissioner at that time.
26. Looked at from whatever angle, order dated 28-12-1961 was the outcome of exercise of powers which were non-existent on that date and was thus a nullity in the eye of law. No rights could flow in favour of the petitioner on the basis of such an order and the PTD issued to him later on has to be treated to be non-est.
27. The petitioner was thereafter left completely bereft of locus standi to inter-meddle in the matter of transfer of the godown in question by the Settlement Department in any manner, deemed fit and proper by it.
28. In this view of the matter, the petitioner cannot be permitted to raise objection to the transfer of the godown to respondent No,2, on the acceptance of his second revision petition. Needless to add that a finding of fact has been recorded by Chief Settlement Commissioner that this second revision has remained pending throughout and was not smuggled into record. It being a pending "matter' within the meaning of section 2(2) of Act XIV had to be disposed of. Whether or not: (i) record had been called before target date and (ii) the application for impleadment of the petitioner was belated one and its disposal was illegal are questions which need not be gone into in view of the finding recorded hereinbefore that the order of Chief Settlement Commissioner dated 28-12-1961 and consequential PTD being nullity, the petitioner is left bereft of locus standi to challenge the vires of the impugned order awarding godown to respondent No,2 and thus he cannot be permitted to raise these questions.
29. The conduct of the petitioner is also not above board. He manoeuvred to secure an incompetent order dated 28-12-1961 through a miscellaneous application and that too without impleading respondent No,2 whose second revision was pending adjudication. He has already secured transfer of a commercial unit (Shop No,100, Ram Gali, Gowalmandi, Lahore) on the strength of C.S. Form which thus stood exhausted. He could not claim another commercial property, i,e, godown in question, located quite far away from it. The definition of "shop" vide section 2(12) of Displaced and Rehabilitation Persons (Compensation) Act, 1958, cannot be stretched to include this godown in the shop in Ram Gali, as it is not attached or appurtenant to it. I questioned his learned counsel as to the basis of his claim for this godown and his reply was that in the meantime Settlement Scheme No,VIII had come into force and the petitioner can validly rely on it to press for it. Admittedly, the petitioner has not submitted any transfer application for this godown in terms of para. 8, Chapter III of Settlement Scheme No,VIII. This shows the hollowness of his claim.
He should feel content with the shop already transferred to him and let the matter rest there. There is no force in this writ petition. Dismissed with no order as to costs.