' The dispute in this case relates to evacuee property No, S. E.
14. R.-32, Empress Road, Lahore, which is a huge property consisting of several units. Muhammad Sharif Puri (petition in W. P. No, 512/R of 1969) who is a local, claims to have purchased on 12-4-1948 machinery of cold storage and ice factory, which was in a dilapidated condition, from the Director of Industries for Rs, 10,300. According to this petitioner, by order dated 5-9-1952 (Annex. 'A' in W. P.
No, 512/R of 1969) the Deputy Rehabilitation Commissioner, Lahore, allotted the cold storage consisting of one small machinery room, one water tank, one large room, one small room, one tube-well room, cold storage underground with compound measuring North 80', 'South 12/, West 80' and East 100'. There is also mention of "including portion of Kothi and cold storage." It seems that sub-sequently the Rehabilitation Commissioner vide order dated 11.7-1956 asked Muhammad Sharif Puri to vacate the premises. This order was challenged in revision before the Custodian (Mr. Justice A. M. Jan) who vide judgment dated 26-1-1957 accepted the same (PLD 1957 Custodian 12).
At the commencement of the settlement operations the Chief Settlement Commissioner after inspecting the spot decided that this evacuee property S. E. 14/R/ 32, Empress Road, Lahore, should not be treated as big mansion, but be disposed of under Settlement Scheme No, 1 (Annex. 'A' in W. P.
No, 181/R of 1967). Accordingly, the Inspector after spot inspection made a detailed report dated 7- 5-1960 regarding the disposal of this property and the Deputy Settlement Commissioner vide order dated 9-5-1960 (Annex. 'B' in W. P. No, 181/R of 1967) agreeing with the said report ordered the transfer of various portions in favour of Ross Masood Claimant, Kanwar Khurshid Ali Khan Claimant, A. H. Anwari claimant and Ahmadyar Khan claimant who were also in possession of their respective portions. However, the forms of Abdul Hamid Khan, Mst. Feroza Salim, Muhammad Ibrahim and Muhammad Akbar were rejected. Against this order of the Deputy Settlement Commissioner, eight separate appeals were filed by Kanwar Khurshid Ali Khan, Abdul Harald Khan, Ahmadyar Khan, Mst.
Feroza Salim, Akhtar lqbal Puri (petitioner), Ross Masood, Abdul Razzak and Muhammad Sharif Puri (petitioner). These appeals were first heard by Malik Ghulam Jilani, Additional Settlement Commissioner (Judicial) Lahore-I, on 5-12-1960 (Annex. 'J' in W. P. No, 18I/R of 1967) and then finally disposed of by order dated 19-12-1960 (Annex. 'K' in W. P. No, 181/R of 1967). The Additional Settlement Commissioner transferred portion 'A' in favour of Akhtar Iqbal Puri, portion 'B' to Ross Masood, portion 'C' to Ahmadyar Khan, portion 'D' to K.Anwar Khurshid All Khan, portion `E' to Muhammad Sharif Puri, portion 'F' to Abdul Hamid Khan, portion 'G' to Mrs. Feroza Salim and portion 'H' to A. H. Anwari. The above orders of the Additional Settlement Commissioner were challenged by filing eleven separate revision petitions before the Settlement Commissioner who vide the impugned order dated 9-11-1966 (Annex. 'P' in W P. No, 181/R of 1967) disposed of all the revision petitions. Akhtar Iqbal Puri petitioner challenged the impugned order through W. P. No, 181/R of 1967 filed on 22-2-1967 and the same was admitted to regular hearing on 9-3-1967. Muhammad Sharif Puri petitioner filed separate W. P. No, 512/R of 1969 on 22.5-1969 and was admitted to regular hearing on 28-5-1969 subject to the objection of limitation and ladies to be raised at the time of final disposal. Since both these writ petitions relate to the same property and arise out of the same impugned order, they are being disposed of by this judgment,
2. First I take up W. P. No, 512/R of 1969. As indicated above, against the impugned order dated 9-11- 1966 the present writ petition was filed before this Court on 22-5-1969 and was admitted to regular hearing on 28-5-1969, subject to the objection regarding limitation and laches to be raised at the time of final disposal. The contesting respondents, therefore, have raised a preliminary objection that this writ petition is liable to be dismissed on the ground of delay and laches. Admittedly, there is a delay of more than two and a half years in filing this writ petition. The only explanation offered by the petitioner is the note dated 22-5-1969 given at the end of the petition by his counsel which is reproduced below I-- "The petition was after completion mixed up with some papers in the newly acquired office at 33- The Mall Mansion, Lahore. Despite hectic search everywhere it was not forthcoming. It is only two days back that my previous neighbour and landlord while adjusting his own office came across this petition and was good enough to make it available to the counsel. The previous clerk had to be removed from service on this score. The Settlement record is also lying in this Honourable Court in the connected W. P."
' I have minutely gone through this explanation and given my anxious thought to it, but find myself unable to accept the same. According to this note, the petition after its completion on 2i-9-1907 was mixed up with some other papers in the newly acquired office of the counsel at 33-The Mall Mansion, Lahore. This petition remained lost or untraced from 21-9-1967 till two days before 22-5- 1969 i,e, till 20-5-1969. It means it remained untraced for one year and eight months from the date of its drafting. If the explanation offered had been true, then the reaction or conduct of the counsel as well as of his client should have been different. The counsel could not remain silent for such a long time after accepting the brief. He could easily redraft a fresh petition and file the same after a week or so. It may also be observed that this petition was already late as the impugned order was passed on 9-11-1966 and the connected Writ Petition No, 181/R of 1967 was filed by the son of Muhammad Sharif Puri on 22-2-1967. It may further he noted that the counsel in both these writ petitions is the same. Further, no certified copies of the annexures etc. Are attached with the present writ petition. Only uncertified copies of the annexures have been filed. These annexures have been attested by the counsel only. Only one document, namely, grounds of appeal before the Additional Settlement Commissioner (Annex. `B') is a certified copy. Thus, there could be no difficulty for the learned counsel to redraft and tile a fresh petition if the original writ petition was not traceable. The non-judicial stamp of Rs, 100 could also be purchased afresh. No responsible counsel could remain inactive for such a long time and wait till the old draft was traced out.
Further, I find that even the name of the clerk who is said to be responsible for mixing up the papers, has not been disclosed. Similarly the name and particulars of the previous neighbour and landlord of the counsel are not given. The conduct of the petitioner is also not satisfactory in this regard. Like an ordinary client he should have enquired from his counsel whether his writ petition had been filed and if so, with what result. Silence on his part for such a long time casts serious doubt about the bona fides of the claim of the petitioner that the drafted writ petition was really mixed up or misplaced in the office of the counsel. On the other band, it is vehemently argued by the learned counsel for respondent No, 5 that this petition was deliberately kept pending for an ulterior motive. Muhammad Sharif Puri petitioner bad also applied for transfer of another property known as Mayfair Hotel, Murree. First he tried to get this property transferred in his favour under Paragraph 20 of Settlement Scheme No, 1, but ultimately he failed and his Writ Petition No, 795/R of 1961 was dismissed by a Division Bench of this Court consisting of Mushtaq Hussain and Ataullah Sajjad, IL On 27-3-1968, since during the intervening period Settlement Scheme No, VIII came into force in 1966, Muhammad Sharif Puri petitioner apart from pursuing his case in the High Court under Paragraph 20 of Settlement Scheme No, 1, also filed LH form No, 203/MRE under Settlement Scheme No, VIII on 20-10-1966 for the transfer of the same property, namely. Mayfair Hotel Murree.
This form was rejected by the Deputy Settlement Commissioner on 18-6-1968. He filed an appeal before the Additional Settlement Commissioner, Rawalpindi, who by his order dated 19-8-1968 remanded the case to the Deputy Settlement Commissioner, Murree, to decide it afresh on merits.
Accordingly, the Deputy Settlement Commissioner, Murree, vide order dated 22-4-1969 transferred Mayfair Hotel Murree in favour of Muhammad Sharif Puri petitioner under Settlement Scheme No, VIII. According to the respondent it was after securing the transfer of Mayfair Hotel, Murree in his favour against his LH form that Muhammad Sharif Puri petitioner thought of filing the present writ petition in order to get another property at Lahore as an industrial concern. After taking into consideration the relevant material and hearing the counsel for the parties, I am clearly of the view that the explanation offered by the counsel for this inordinate delay is neither satisfactory nor convincing and no sufficient cause has been shown for the same. There is no explanation whatever for earlier delay from 9-11-1966, the date of the impugned order, till 21-9-1967, the date of the drafting of the writ petition. It may be noted here that the same counsel had already filed writ petition on behalf of Akhtar lqbal Puri son of Muhammad Sharif Puri petitioner on 22-2-1967 and the same was admitted to regular hearing on 9-3-1967 when the operation of the impugned order was also suspended. Thus, the delay first from 941-1966 to 21-9-1967 and then from 21-9-19t7 to 22-5- 1969 remains unexplained and consequently this writ petition suffers from inordinate delay and laches. On the other hand, I feel that the petitioner deliberately did not file this' writ petition earlier as he was pursuing his case regarding Mayfair Hotel, Murree before different authorities and it was only after its transfer on 22-4-1969 that he thought of filing the present writ petition before this Court. Since this writ petition was admitted subject to the objection of limitation and laches to be raised at the time of final disposal, the same is therefore, liable to be dismissed on this ground alone.
3. Even on merits, Muhammad Sharif Puri petitioner has got no case. It is an admitted fact that he did not file any LH or other form for the transfer of any portion of this property in his favour. Since against his LH form he has already secured another property at Murree (Mayfair Hotel) he cannot claim the transfer of any other house or residential unit under the law. Malik Ghulam Jilani, Additional Settlement Commissioner, had transferred portion `E' to him on the ground that he had spent about Rs, 40,000 to instal Ice and Cold Storage factory and the machinery was purchased by him from the Rehabilitation Department which was transferred in his favour by the Secretary.
Rehabilitation Board. As regards the existence of Ice and Cold Storage Factory, it is vehemently and categorically denied by all other occupants of this property. According to them, no such factory was in existence at the relevant time when the Settlement operations started and this portion 'E' was transferred in his favour by the Additional Settlement Commissioner. Apart from this, there is another serious hurdle in the way of Muhammad Sharif Puri petitioner. As mentioned above, the Chief Settlement Commissioner vide Memorandum No, 637-F & M. Reh. E0, dated 15-4-1960, (Annex. 'k' in W. P. No, 181/R of 1967) endorsed to the Deputy Settlement Commissioner, Centre I, Lahore, after personally inspecting the spot, had decided that evacuee property No, S. E.
14. R. 32, Empress Road, Lahore, should not be treated as big mansion, but be disposed of under Settlement Scheme No,
1. It was after. This Memorandum that the question of transfer of this property was taken up by the subordinate Settlement authorities. If there had been any industrial concern of any kind in existence on the spot at the time when the Chief ,Settlement Commissioner inspected this property, he should have noted the same and consequently could not order the transfer of the same under Settlement Scheme No,
1. It is not denied that Ice and Cold Storage factory could not be transferred under Settlement Scheme No, 1.
For the transfer of such an industrial concern, he should have issued separate directions. It is not denied that nobody felt aggrieved with the above-mentioned Memorandum of the Chief Settlement Commissioner, as neither the petitioner nor anybody else made any representation to him in this behalf, nor was it otherwise challenged before any competent authority. If the contention of Muhammad Sharif Puri petitioner or his son Akhtar Iqbal Puri petitioner be accepted that they were running some industrial concerns at that time, then the proper course for them was to approach the Chief Settlement Commissioner either to withdraw that Memorandum or modify it to the extent that it could not cover their respective industrial concerns. It is not denied that no such representation was ever made to the Chief Settlement Commissioner in this behalf, nor otherwise the said Memorandum was challenged before any competent authority. Thus, the conduct of both the petitioners in this behalf goes against them. It is surprising how Malik Ghulam Jilani, Additional Settlement Commissioner, could flout such clear-cut direction of his superior, the Chief Settlement Commissioner, by transferring a portion of the property as industrial concerns. If he had found Ice and Cold Storage factory in existence at the relevant time, he should have referred the case to the Chief Settlement Commissioner for necessary Instructions. It may be observed here that the Rehabilitation Inspector who submitted hi report after spot inspection on 7- 5-1960 has not at all mentioned the existence of any industrial concern in the property in dispute.
He has, however, mentioned that the major portion of the main bungalow was in occupation of Muhammad Sharif Puri, a local who had tiled no LH form. It shows that the Inspector was conscious of the possession of this petitioner and if he or his son had been running any industrial concern, the Inspector should have noted and mentioned the same in his report. Even Malik Ghulam Jilani.
Additional Settlement Commissioner, in his order dated 19-12.1960 while transferring portion 'E' to Muhammad Sharif Puri has not specifically mentioned the existence of any Ice or Cold Storage fact, ry. He has only mentioned that Sharif Puri had sent about Rs, 40,000 to instal Ice and only Storage Factory and the machinery was purchased by him rom the Rehabilitation Department which was transferred in his favour by the Secretary, Rehabilitation Board. According to the counsel for the contesting respondents what was purchased by Muhammad Shard Puri petitioner was a mere junk which he disposed of subsequently at con siderable profit. According to him, if this petitioner was still running the alleged Ice and Cold Storage Factory at the relevant time, he should have applied for the transfer of the same when the settlement operations for transfer of such industrial concerns started. There is nothing on the record to show that Muhammad Sharif Puri had ever applied for the transfer of such industrial concerns in any manner. As indicated above, the Inspector in his report dated 7-5-1960 did not recommend the transfer of either any residential unit or Industrial concern in favour of Muhammad Sharif Puri and consequently nothing was transferred in his favour by the Deputy Settlement _Commissioner, The learned counsel for this petitioner has pot been able to point out any form or even application on the file submitted by Muhammad Sharif Puri petitioner for the transfer of any industrial concern or even a residential unit. The whole of the settlement record is available before this Court. It is not denied that if at the relevant time the Ice and Cold Storage factory bad been in existence and in running condition, this petitioner would have submitted form or some application for the transfer, of the same. Complete silence on his part not to apply for the transfer of such industrial concern goes a long way against the petitioner.
It may be observed that if his case was covered by sub-paragraph (3) of paragraph 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it was necessary for him to apply for the transfer of the same. Further, if there had been such Ice and Cold Storage Factory in existence, it should have been included in the list of such factories in the relevant register of the Department concerned and should have been disposed of as such. The existence of Ice and Cold Storage factory could not escape the notice of the relevant authorities, especially situated on a main road in a city like Lahore. It is not denied that there is a regular procedure for the disposal of such industrial concerns. If this alleged Cold Storage and Ice Factory had been in existence, it should have been included in the relevant record of the Department. The fact that the Department has never claimed the existence of this Cold Storage and Ice Factory clearly belies the claim of Muhammad Sharif Puri petitioner. In fact, under the garb of industrial concern, he wants to grab the residential portion of this property which he otherwise is clearly debarred under the law. Another relevant material in this behalf is the judgment of the Custodian dated 26-1-1957 reported as PLD 1957 Custodian 12 on the revision tiled by Muhammad Sharif Puri petitioner against the Rehabilitation Authority. As indicated above, the Rehabilitation Commissioner had passed an order against Muhammad Sharif Puri on 11-7-1956 for his ejectment from the premises. I have carefully gone through this judgment. There is no mention whatever about any Ice and Cold Storage Factory in this judgment. It seems that this petitioner at that time was only fighting for the retention of the residential premises. It is nobody's case that Muhammad Sharif Puri was claiming two units-one as industrial concern and the other as residential unit. It there had been any industrial concern in existence and under the control of the petitioner, there should have been some mention of it in the judgment of the learned Custodian dated 26-1-1957, because some residential accommodation would be necessary to run such a concern. From a perusal of the judgment of the Custodian it is clear that at that time Muhammad Sharif Puri was fighting only for the residential accommodation and, therefore, there could be no Ice and Cold Storage Factory in existence at that time, otherwise it would have been mentioned in that judgment and the petitioner would have used the same in support of his claim. Another circumstance which belies the claim of Muhammad Sharif Puri is that in his grounds of appeal dated 18-11-1968 (Annex. 'B') filed before the Additional Settlement Commissioner it is mentioned in ground No, (6) as under "The industrial concern is being run under the name and style of 'Iqbal Sons Ltd' and is also registered under the Factories Act, of 1934.
Therefore, this being as such ...............................
' Respondent No, 5 has placed on record a photostat copy of Memorandum No, F/LHR/841, dated 7- 2-1974 from the Zonal Director Labour Welfare, Lahore Region, Lahore, which reads as under "This is to inform you that no evaouee industrial concern run under the name of Iqbal Sons Ltd., as a factory registered under the Factories Act, 1934 had ever existed at 32 Empress Road, Lahore."
' The petitioner has not been able to place any material on the record either to substantiate his own assertion or to rebut the above-mentioned Memorandum issued by the Zonal Director, Labour Welfare, Lahore Region, Lahore. After taking into consideration the relevant material available on the record and hearing the counsel for the parties, it can safely be held that at the time of spot inspection by the Chief Settlement Commissioner in 1960, there was no Ice and Cold Storage Factory or any other industrial concern in existence on the premises of 32 Empress Road, Lahore. I am further of the view that Muhammad Sharif Puri petitioner did not submit any form or even an application for the transfer of the alleged Ice and Cold Storage Factory and, therefore, cannot have any grievance against the impugned order passed by the Settlement Commissioner. Thus, his W. P.
No, 512/R of 1969 is liable to be dismissed on merits as well.
4. Now I take up W. P. No, 181/R of 1967 filed by Akhtar Iqbal Puri petitioner son of Muhammad Sharif Puri petitioner. He alleges to have filed LH form No, 161 on 17-11-1959. It is an admitted fact that this form is not available on the Settlement file. The petitioner has only placed on record a copy of the receipt (Annex. 'G') showing that two copies of the application in form LH were received from Muhammad Akhtar Iqbal son of Munammad Sharif on 17-11-1959. According to the petitioner, this form has been misplaced by the office and he cannot be punished for the inefficiency and carelessness of the office. On the other hand, it is alleged by the contesting respondents that in fact no such form was submitted by the petitioner, but subsequently he manoeuvred to secure this receipt in collusion with some subordinate staff. On the basis of this LH form the petitioner was claiming the transfer of the portion of the annexe in which he had installed an industrial concern.
However, subsequently this petitioner changed the entire complexion of his claim. He alleges to have submitted an application on 6-5-1960 (Annex. 'D') and claims the transfer of the property as converted property in accordance with the Press-note dated 3-5-1960. All the contesting respondents vehemently argue that this application dated 6-5-1960 is not a genuine one, but has been smuggled into the record after the decision of the Settlement Commissioner dated 9-11-1966 before filing the present writ petition. Reliance in this behalf is placed upon the following :-
(a) This document is not mentioned in the report of the Rehabilitation Inspector dated 7-5-1960 and even in the order of the Deputy Settlement Commissioner dated 9-5-1960 (Annex. 'B').
(b) Even the grounds of appeal dated 27-7.1960 (Annex. '0') filed by Akhtar Iqbal Puri petitioner himself before the Additional Settlement Commissioner, are silent about this document. The petitioner has mentioned LH form but this document is not at all mentioned.
(c) There is no mention of this document in the order of the Additional Settlement Commissioner dated 19-12-1960, although ho had transferred the portion to the petitioner on the basis of industrial concern. According to the respondents if this document had been in existence at that time, Malik Ghulam Mani, Additional Settlement Commissioner, could not possibly omit to mention this document as he had accepted the appeal of the petitioner and had transferred much more than the portion claimed by him in his appeal. The Additional Settlement Commissioner would have made this document the basis of his order so far as Akhtar Iqbal Puri was concerned, if this document had been on the file at that time.
(d) Akhtar Iqbal Puri, had also filed a revision petition before the Settlement Commissioner but in grounds there is no mention of this application (Annex. 'D').
(e) While the case was pending before the Settlement Commissioner the parties had tiled their written arguments. Akhtar Iqbal Puri had also filed his written arguments and in those arguments there is no reference of this document.
(f) The application of Abdul Razzak respondent dated 11-4-1967 submitted to the Additional Settlement Commissioner is with the following report of the Head Clerk dated 29-4-1967 endorsed by the Deputy Settlement Commissioner on 8-5-1957 :- "I have examined the file and have also been the pages from 119 to 125 carefully. Page 119 is an application addressed to D. S. C. Dated 6-5-1960, which bears no signature of any officers and official. Same is the position of an attested certificate of Mr. M. A. Iqbal dated 20-1-1953. Same is the file of linear plan of the Komi in question. The registered letter (envelope) also indicated the same position. All the four documents also not dtarised as required seems to be doubtful. Certificate can be granted to the petitioner accordingly. Submitted pl.
(Sd.) H. C.
29-4-1967 Inform him accordingly.
(Sd.) D. S. C.
8-5-1967."
(g) Abdul Razzak respondent has also drawn my attention to this document which is at page 119 of Settlement File No, 3 It bears no signatures of any official of the Department either showing the receipt of this document or marking the same to anyone for further action. Even it was not diarised by anyone and there is no entry of this document in any Settlement record, as no receipt has been produced by the petitioner. The respondent has further pointed out the registered envelope in which this document along with others was posted to the Deputy Settlement Commissioner, Qila Gujjar Singh. The words "To" and "Deputy" on it are in different ink and hand from the words "Settlement Commissioner........ " On the right side of this envelope it seems as if the stamps have been removed. A part of the postal seal showing only the words "G P 0" are there. There is a small chit affixed on this envelope showing the number of the registered letter as ''RC 332 Lahore G. P. O'.
Inside this envelope are lying two unused stamps of three anna each. There is no explanation how these two unused stamps remained lying inside the envelope and what happened to the stamps actually used and affixed on this envelope. The respondent wants to use this circumstance against the petitioner that this is a bogus envelope introduced in the present case.
' The petitioner has not been able to produce or refer to any document to rebut this assertion of the respondent. However, since the case of Akhtar Iqbal Puri petitioner has been remanded by the Settlement Commissioner to the Deputy Settlement Commissioner, it is not desirable to express any opinion at this stage on this aspect of the case, lest the case of any party is prejudiced before the Deputy Settlement Commissioner who among other issues shall decide this issue as well after taking into consideration the relevant material and the arguments of the parties. It may, however, be clarified that this will be confined only to the annexe and the servant quarters and will have nothing to do with the main building of the bungalow as held by the Settlement Commissioner in the impugned order.
5. The next question which falls for determination is whether Akhtar Iqbal Puri petitioner was in possession of any part of the main bungalow or not. It is vehemently contended by the learned counsel for the petitioner that the finding of the Settlement Commissioner that the petitioner was not in possession of any portion of the main bungalow or any lawn or any open space is erroneous and liable to be set aside. On the other hand, the counsel for all the contesting respondents urge that this finding of the Settlement Commissioner is factually and legally correct and requires no interference by this Court in exercise of its original Constitutional jurisdiction. According to them, there was no industrial concern in any part of the main bungalow. If the petitioner had been in possession of any such portion of the main bungalow, he would have filed an appeal against the order of the Deputy Settlement Commissioner claiming the transfer of such portion or at least he should have mentioned this fact in his grounds of appeal (Annex. G) filed before the Additional Settlement Commissioner where he confined his claim to the part of the annexe and servant quarters. Even otherwise there is no mention in his grounds of appeal filed before the Additional Settlement Commissioner that he was in possession of any such portion of the main bungalow. In that appeal he impleaded only Abdul Hamid Anwari as a private respondent in addition to the Department. Admittedly, Abdul Hamid Anwari was never in possession of any portion of the main bungalow. In his affidavit (Annex. R/1) filed along with the petition for condonation of delay, the petitioner has in paragraph 4 specifically stated that the premises occupied by him had been transferred to Abdul Hamid Anwari. Admittedly, these premises were different from any portion of the main bungalow. Further, the price of the portion claimed by the petitioner was less than Ric 10000. It is not denied that the portion of the main bungalow claimed subsequently by the petitioner would be of much more value than Rs, 10,000. Even in his statement before the Settlement Authority (Annex. R/2) the petitioner has claimed the transfer of servant quarters only and not of any portion of the main building. The report of the Renabilitation Inspector (Annex. B ) is also silent about the possession of Akhtar Iqbal Puri petitioner and for this reason the Deputy Settlement Commissioner in his order dated 9-5-1960 (Annex. 'B') did not even mention the name of Akhtar Iqbal Puri. The petitioner claims to be in possessiou since 1954. Tnis claim of the petitioner regarding his possession is directly belied by the judgment of the Custodian dated 26-1-1957 (PLD 195 Custodian 12). As mentioned earlier, the Rehabilitation Commissioner had issued ejectment order against his father Muhammad Sharif Puri who had challenged that order in revision before the Custodian. There is no mention of Akhtar Iqbal Puri being in possession in any part of this property in any capacity. Muhammad Sharif Puri has mentioned the possession of his another son but not of Akhtar Iqbal Puri petitioner. Considering from ordinary human conduct point of view, it can reasonably be inferred that if Akhtar lqbal Puri really had been in occupation in any part of the main bungalow, his father could not omit to mention the same before the Custodian. Thus, complete absence of Akhtar Iqbal Pari's name from the judgment of the learned Custodian, is very material circumstance which goes against this petitioner. It may be mentioned that the possession of Muhammad Sharif Puri of a portion of the main bungalow has been admitted even by the Rehabilitation Inspector in his report dated 7-5-1960. If Akhtar Iqbal Puri had been in possession, the Inspector must have noted the same as he had prepared that report after spot inspection and making necessary inquiry from different occupants. Respondent No, 5 also claims to have initi ted ejectment proceedings against Muhammad Sharif Puri who was in possession of a portion of the main bungalow. If Akhtar Iqbal Puri had also been in possession, similar proceedings would have been initiated against him as well. Ross Masood respondent was admittedly in possession of a part of the main bungalow from the very beginning and he had submitted his CH form also. In that CH form he has not at all shown the possession of Akhtar Iqbal Puri petitioner of any portion while there is reference to Muhammad Sharif Puri's possession of a part of the main bungalow. Subsequent application dated 10-11-1959 filed by Ross Masood respondent (Annex. R/5) is also silent about Akhtar Iqbal Puri's possession of the main bungalow, while against Column No, 10, the name of Muhammad Sharif Puri as occupant in part of the main bungalow is mentioned. The petitioner has miserably failed to prove his actual physical possession of any portion of the main bungalow through any documentary or other evidence. For claiming any portion from the main bungalow the onus was heavily upon him to prove his possession or occupation of the same which he has failed to do so. The question of possession is undoubtedly a question of fact which has been rightly determined by a competent Settlement authority. In exercise of its Constitutional original jurisdiction, this Court generally does not interfere or upset such finding of fact, especially when the petitioner has failed to place any positive material to establish his possession or occupation of any portion of the main bungalow B or lawn. Accordingly, I see no legal justification to set aside the finding of fact arrived at by the Settlement Commissioner-rather I also endorse that view.
6. It is contended by Mr. Fazle Mahmud, the learned counsel for the petitioner, that the Settlement Commissioner ignored even the report of the Rehabilitation Inspector (Annex. 'Q') which was made under his own orders. It was on this ground that initially this writ petition was admitted to regular hearing. On the other hand, Mr. Mahmud All Kasuri the learned counsel for respondent No, 5, contends that the said report had nothing to do with the possession of the main bungalow and according to him, the petitioner has erroneously used that report in his favour. In ground (m) of this writ petition it is stated that the Settlement Commissioner also completely ignored the report of the Settlement Inspector dated 6-2-1961 (Annex. 'Q') wherein under the orders of the learned Settlement Commissioner dated 27-1-1961 the Settlement Inspector had submitted a factual report to the Settlement Commissioner and in that report the Inspector had clearly mentioned in the main building of the bungalow portion marked 'A' there were 36 automatic sewing machines and the business of tailoring was being done there and whereas in portion 'B' of the main building there was presently no business being run, because the roof had fallen, but there were lying thereunder spare parts of machines and khaddies and some old cloth pieces. The said report of the Inspector is placed on the record as Annex. 'Q'. It is an admitted fact that Ahmed Yar Khan had also filed a revision petition No, 99 of 1965 against the order of Malik Ghulam Jilani, Additional Settlement Commissioner, dated 19-12-1960. In this revision petition Akhtar Iqbal Puri was the only private respondent. During the pendency of this revision petition a petition for spot inspection (Annex R./9) was also submitted on which the Settlement Commissioner passed the following order :- "I would like Haji Saif Ali Settlement Inspector to inspect this property and report to me whether any textile mill exists there or not.
(Sd.) S. & R. C.
25-1-1961."
' In compliance with this order the office issued Memo. No, J/FAK/S & RC/LHR/61/442, dated 27-1- 1961 (Annex. R/9) to Haji Satf Ali Settlement Inspector, Faridkot House, Lahore, to inspect the premises and submit his report whether any textile mill existed there or not. In the subject of of this Memo. The name of the case is written as Khan Ahmadyar Khan v. The State. The said Haji Saif All Settlement Inspector then submitted his report dated 6-2-1961 (Annex. Q). I have myself examined the original Settlement File No, 99 (S. E.
14. R. 32) containing the said revision petition of Khan Ahmadyar Khan tiled against Muhammad Akhtar Iqbal Puri petitioner. The petition for spot inspection (Annex. R/8) is at page 31, while Memo.
(Annex. R/9) is at page 29 and the actual report of the Inspector (Annex. Q) is at page 33. Further, it is an admitted fact that said Ahmadyar Khan had nothing to do with any portion of the main bungalow. He was transferred portion 'C' by the Additional Settlement Commissioner. According to him, this is a different property owned by a different owner, namely, Tek Chand, while the owner of the property in dispute was Basheshar Nath Khanna. In fact, no specific relief is claimed by the petitioner against Ahmadyar Khan respondent. It is thus crystal clear that it was in the revision petition of Ahmadyar Khan and not of Ross Masood or Akhtar Iqbal Puri that the said report was called for. The particulars referred to in the said report (Annex. Q) also have no application to the main bungalow. Paragraph 2 of this report states that the building is single-storeyed. Admittedly, the main bungalow is double-storeyed building. Similarly, it is not denied that no portion of the roof of the main bungalow had fallen down at that time. It is further not disputed that portion 'C' transferred to said Ahmadyar Khan respondent by the Additional Settlement Commissioner is absolutely separate one and has nothing to do with the main portion of the bungalow which admittedly was at the relevant time occupied by Ross Masood and Muhammad Sharif Puri only. If AhmadyarKhan had been in possession of any portion of the main bungalow, Ross Masood respondent in his CH form would have mentioned the same. As mentioned above, Akhtar Iqbal Puri claims to have submitted his LEI form for the transfer of an annexe and some quarters and had not claimed any portion of the main bungalow. Even in his grounds of appeal before the Additional Settlement Commissioner Akhtar Iqbal Puri did not claim the transfer of any part of the main building. Further, it may be noted that in his Memo, of appeal he impleaded only Abdul Hamid Anwari as a private respondent and not Ross Masood or any other alleged occupant of the main bungalow. After careful scrutiny of the relevant material available on the record and hearing the counsel for the parties I have reached the conclusion that this report (Annex. Q) has no reference to the main bungalow but it is referable only to the portion of Ahmadyar Khan respondent i,e, portion 'C'. I am further of the view that the petitioner has deliberately suppressed the forwarding Memo. (Annex. R/9) and petition for spot inspection (Annex. R18) in order to keep the Court in dark and the eby take undue advantage of this document in his favour. Mr. Mahmud All Kasuri argued that if the admitting Bench had been apprized of the true position about this report, perhaps the writ petition would not have been admitted to regular hearing and since it was admitted on this point alone, which has been proved to be false, it is liable to be dismissed. In the presence of this documentary evidence the petitioner has not been able to rebut this assertion by reference to any document on the record.
7. It is argued on behalf of the respondents that the appeal of Akhtar Iqbal Puri before the Additional Settlement Commissioner was barred by limitation and he had also filed a petition for condonation of delay under section 5 of the Limitation Act, but the Additional Settlement Commissioner accepted the appeal without condoning the delay and the reasons mentioned in the said application are not sufficient ones to condone the same. According to them, the appeal was liable to be dismissed on the ground of limitation alone. Reliance in this behalf is placed upon the following authorities :- ' PLD 1964 SC 260 ; PLD 1965 SC 269 ; PLD 1966 SC 276; PLD 1966 Pesh. 132 ; PLD 1968 Lab.
1299.
' The counsel for the petitioner has not been able to cite any authority to the contrary.
7. Mr. Fazle Mahmud, the learned counsel for the petitioner, contends that the order of Mr. Jaffery dated 9-54960 (Annex. 'B') is without jurisdiction, as according to him, Mr. Jaffery was only Assistant Settlement Commissioner and was not vested with the powers of the Deputy Settlement Commissioner. It may be straightaway observed that the petitioner is raising this objection for the first time before this Court. This objection was never raised before any Settlement authorities. If Mr. Jaffery was Assistant Settlement Commissioner, then the appeal against his order should have been filed before the Deputy Settlement Commissioner. However, the petitioner himself filed the appeal before the Additional Settlement Commissioner and has described Mr. Jaffery as Deputy Settlement Commissioner. He has not been able to satisfy me how he filed the appeal before the Additional Settlement Commissioner if the initial order was passed by an Assistant Settlement Commissioner. It is not denied that Mr. Jaffery in addition to the present case disposed of hundreds of other cases in his capacity as Deputy Settlement Commissioner. The Department has not so far doubted his jurisdiction as Deputy Settlement Commissioner. The petitioner apart from a mere verbal assertion has not placed any material on the record to substantiate his contention. In the absence of any such material I am not inclined to accept this technical plea raised by the petitioner. Moreover, as mentioned above, this objection not having been raised before any competent Settlement authority, cannot be allowed to be raised for the first time before this Court.
The respondents have cited the following authorities against the assertion of the petitioner :- ' PLD 1964 SC 829 ; PLD 1968 SC 1; 1971 SC MR 727; PLD 1967 Lah. 81; PLD 1972 Kar.
493.
' The petitioner has not been able to cite any authority to the contrary. Another argument advanced on behalf of the petitioner against the order of Mr. Jaffery is that he did not apply his naiad independently but has agreed with the report of the Rehabilitation Inspector. The counsel for the respondent contended that Mr. Jeffery had considered the case on merits before accepting the report of the Inspector. In any case, since the whole case has been thoroughly examined by the higher Settlement authorities and ultimately the Settlement Commissioner has upheld the order of Mr. Jeffery, no ecception can be taken at this stage against it as it has not caused any prejudice to the petitioner.
8. Mr. Fazle Mahmud has vehemently argued that Abdul Razzak respondent No, 5 is not entitled to any portion of this building, as according to him, he is a "rank outsider". On the other hand, according to Mr. Mahmud Ali Kasuri, the petitioner has no locus standi to challenge the status of Abdul Razzak respondent. After the transfer of the main bungalow in his favour, Ross Masood respondent entered into agreement of association with Abdul Razzak respondent on 30-6.1960 This association deed was accepted by the Deputy Settlement Commissioner concerned on 2-7-19b0.
Against this order, however, Ross Masood respondent filed an appeal which was dismissed by Col. J. D. Malik, Additional Settlement Commissioner, vide his order dated 5-11-1960. Ross Masood respondent then filed a revision petition before the Settlement Commissioner and that too was rejected. After that, he did not agitate the matter any further by filing any writ petition before this Court. After the acceptance of the deed of association, different portions were transferred in favour of Ross Masood and Abdul Razzak respondents. Each of them was also issued P. T.
0. Regarding his respective portion. Those P. T. Os. Have not so far been challenged before any higher authority and are still intact. In these circumstances, the status of Abdul Razzak respondent as transferee of a portion of the property as an associatee stands established and has attained finality as the only aggrieved person Ross Masood did not pursue this matter any further. The present petitioner is, therefore, not legally justified to challenge the status of Abdul Razzak respondent as an associatee of Ross Masood respondent.
' The learned counsel for the petitioner has also agitated that Ross Masood respondent claimed the transfer of only that portion which was in his occupation. In other wows, according to the original CH form filed by him, Ross Masood respondent claimed only the portion in his possession. No doubt, initially Ross Masood in his form claimed transfer of only the portion in his actual occupation, however, subsequently on 10-11-1959 he submitted an application (Annex. R/5) for the correction of his CH form. In this application he has mentioned that the building of the main bungalow was partly in his possession and partly in possession of a local Muhammad Sharif Puri and that being a claimant and allottee he was entitled to the transfer of the whole of the bungalow.
It is further stated in this application that against columns Nos. 10 and 13 which were wrongly filled due to some misunderstanding may please be considered as deleted and read as under :- ' Column No, 10.-Muhammad Sharif Puri (occupant of part of main bungalow).
' Column No, 13.-Total rent of the bungalow is not known. I am paying Rs 60 per month.
' On 15-1-1960 statement of Syed Khalid Mahmud, brother of Ross Masood respondent, was also recorded (Annex. R/6). Reading of these two documents makes it abundantly clear that in fact Ross Masood respondent had claimed transfer of the entire main building of the bungalow and not only the portion in his occupation. In the presence of these documents, a mere verbal assertion of the petitioner has got no force. Moreover, the Settlement record also supports the same.
10. Another technical objection raised on behalf of the petitioner is that the Chief Settlement Commissioner had transferred this case to the Court of the District and Sessions Judge who further entrusted it to the Additional District and Sessions Judge and, therefore, the latter was not competent to hear this case as District and Sessions Judge had no power to further entrust this case to the Additional District and Sessions Judge. The petitioner has not been able to point out any prejudice caused to him by this entrustment to the Additional District and Sessions Judge.
Further undoubtedly at that time District and Sessions Judge as well as the Additional District and Sessions Judge were given the powers of the Settlement Cornmissioner. It is an admitted fact that the Chief Settlement Commissioner had delegated his power under sections 32 and 32-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to the Settlement Commissioners.
In view of this delegated power the District and Sessions Judge exercising the power of the Settlement Commissioner was fully competent to entrust this case to the Additional District and Sessions Judge. Similar point was raised by the petitioner in W. P. No, 591/R of 1966 before my learned brother Muhammad A kram, J. (as his Lordship then was and the same was decided against him. Accordingly, I feel no hesitation to reject this plea raised on behalf of the petitioner.
11. The learned counsel for the petitioner also stressed the point that as the industrial concern it was only the Additional Settlement Commissioner who was competent to deal with the property and not the Deputy Settlement Commissioner. This plea pre-supposes the existence of some industrial concern. I have already held above that if there had been any industrial concern in existence, the Chief Settlement Commissioner at the time of spot inspection would have noticed the same. It can, therefore, safely be inferred that at the relevant time there was no such industrial concern in existence and consequently the question of dealing with the same by the Additional Settlement Commissioner could not arise. Further, I find that the conduct of the petitioners also goes against them so far as this particular plea is concerned. If they were really serious about this, then instead of filing appeal against the order of the Deputy Settlement Commissioner dated 9-5-1960 before the Additional Settlement Commissioner, they should have asked the Additional Settlement Commissioner direct to take up the case of industrial concerns and in case he was reluctant to do so, the petitioners could easily approach the Chief Settlement Commissioner for necessary directions for the modification of his own previous instructions It is an admitted fact that the petitioners filed appeals before the Additional Settlement Commissioner and pursued the same as such. They never asked the Additional Settlement Commissioner to exercise his original jurisdiction to dispose of industrial concern. Thus, their own conduct goes against the petitioners.
12, Although the view I have taken above it is not necessary to discuss the case of each individual transferee of different portions of this propertyt yet since the petitioners as well as the respondents have argued this aspect, of the case at length, I will briefly discuss the same. I have already dealt with the case of Abdul Razzak respondent No, 5 and Ahmadyar Khan respondent No,
17. Kanwar Khurshid Ali Khan, respondent No, 9, has since died. Although the petitioners at one stage got adjournment of the case in order to file a formal application to implead the legal heirs of this respondent, yet the petitioners did not move any such application so fag and they have offered no explanation for not doing the same. However, it is not necessary to go into the question of abatement as Qazi Muhammad Yusuf, the learned counsel for Kanwar Khurshid All Khan, as well as the petitioners admitted before me that the dispute was only regarding actual measurement and demarcation on the spot. Both the parties stated before me that they have no objection against the order of the Settlement Commissioner and in fact both agree for fresh measurement on the spot by the Deputy Settlement Commissioner as directed by the Settlement Commissioner. Hence so far as Kanwar Khurshid Ali Khan respondent is concerned, no interference of any kind in the impugned order is admittedly required. Abdul Hamid Anwari (A. H. Anwari) respondent was transferred annexe, two servant quarters and one plot by the Deputy/Additional Settlement Commissioner and this order has been maintained by the Settlement Commissioner. He is a claimant displaced person in possession. I find no legal justification to disturb his transfer. The case of A. H. Anwari as well as Kanwar Khurshid Ali Khan respondents has been rightly remanded by the Settlement Commissioner for necessary adjustments. Similarly, no further interference is required so far as the case of Ross Masood respondent is concerned. The directions of the Settlement Commissioner regarding the ground appurtenant to the main building of the bungalow are also upheld. In fact, the counsel for Ross Masood respondent did not claim any relief against Abdul Razzak respondent.
13. After hearing the counsel for the parties at length and going through the relevant material available on the record, I have reached the conclusion that the impugned order of the Settlement Commissioner dated 9-11-1966 is perfectly valid passed by a competent authority with jurisdiction and, therefore, requires no interference by this Court while exercising the extraordinary Constitutional jurisdiction. The petitioners have failed to show how that order is without lawful authority and of no legal effect. The result is that both the Writ Petitions Nos. 181/R of 1967 and 512/R of 1969 fail and are hereby dismissed with costs.
14. It may be observed that it is one of those cases where a clever local family has tried to grab the maximum evacuee property under one pretext or the other. The petitioners also have succeeded to prolong the litigation in order to take undue advantage of the same. The first order in this case was passed by the Deputy Settlement Commissioner on 9-5-1960 and still the poor refugees are being dragged into this litigation unnecessarily for the last about sixteen years. The Deputy Settlement Commissioner therefore, is directed to dispose of this matter as expeditiously as possible.
15. As regards C. M. No, 1 of 1974 filed by Ishtiaq All Qureshi etc. It may be observed that these applicants were never a party before any Settlement authority. They were not yet impleaded as a party even in this case. It is not proper for this Court at this stage to consider their entitlement or otherwise. Tbey can move the appropriate Settlement authority if permissible under the law. This petition, however, is dismissed in limine with the above observations.