This judgment will govern Writ Petitions No.693/R of 1981 and No. 143/R of 1982, as both of it, are directed against one and same order, dated 4-11-1981, passed by Deputy Settlement Commissioner/Deputy Administrator (R. P.).
2. The case has chequered history. Succinctly stated, facts, necessary for disposal of these petitions, are that several persons claimed transfer of evacuee plot in Khasra No.2498, measuring 6 Kanals 9 Marlas and 51 sq. Ft. Sundar Das Road, Lahore. Such divergent claims painted with different colours and under different Transfer Orders and P.T.D. Were thrashed by various Settlement Authorities at different levels and finally by Member, Board of Revenue (S&R)/Chief Settlement Commissioner. As a result thereof, two sets, of Writ petitioners, namely, Muhammad Riaz Malik and Jamai Din, K.M. Syed and N.A. Shah remained in the field/arena and survived for contest, out of, at least, five contenders, basis of claims whereof need not be recapitulated.
3.At the advent of inquiry in the matter, pursuant to an order of Chief Settlement Commissioner, Muhammad Riaz Malik etc. The petitioners in Writ Petition No.693/R of 1981 filed and resorted to Writ Petition No.889/R of 1977 and Writ Petition No.1145/R of 1977. Latter, however, was dismissed on 6-7- 1978 as having not been pressed. Writ Petition No.889/R of 1977 was disposed of with following observations:-- "I am, therefore, constrained to hold that the authorities appointed'' under the scheme can examine the limited aspect, if any property is ~'`j available for disposal under the scheme and can even go into the question if any transfer document relied upon by any party before them, is a document properly issued by a settlement authority before the repeal of the Act. If it is found that the matter of transfer stands decided- finally by the Settlement Authorities before the repeal, they are left no jurisdiction, to deal with such a matter any further and the part aggrieved left to seek remedy under the general law.
Before parting with the case, I make it clear that the parties will be at liberty to raise, including the question of jurisdiction in the light of observations made above, any point, as may be available to them before the relevant authority."
4.As a sequel thereto and in terms of an order, dated 23-4-1980 matter was taken up by Deputy Settlement Commissioner, hereinafter, to be referred as "respondent No. l " and concluded as under:-- "Alleged P.T.D. Purported to have been signed by Sh- Abdul Hafee;. On 6-8-1967 in favour of Messrs K.M. Syed and N.A. Shah as associatee with Zia-ul-Islam auction purchaser, auction held, on 23-4- 1962, (item No.26) for Rs.1,70,000 being highest bid, stated to have been confirmed by the Additional Settlement Commissioner as per signatures available on the bid sheet which are without date and receiving of each compensation by the Claimant Zial-ul-Islam against C.P.111 scheme for his C.
Book to the tune of Rs.4,796 after deducting settlement fee of Rs.24 vide cheque. Dated 29-4-1965.
There is no such power of attorney executed by Zia-ul-Islam in favour of ,5..",eikh-ul--Islam authorising him to take part in auction on his behalf The statement of Mr. N.A. Shah, dated 18-2- 1969 as an important piece of evidence in this case who denied his signatures on the association deed with Mr. Zia-ul-Islam. Non-existence of alleged P.T.D. Of Plot No. 2498 Sundar Das Road, Lahore, in C. S. C. -F Register No. 16, on its page No. 14 so made available during the proceedings of the case by the official of the D.S.C.-I, wherein from page 13 to onwards are blank and page No. 14 is initialed by the undersigned on 10-9-1981 being as a quite blank having no entry in respect of the above P.T.D. Thus, the said P.T.D. In favour of Messrs K.M. Syed and N.A. Shah is hereby declared as bogus as the same has not been got issued from the Settlement Authorities i.e. The then D.S.C.-I, in June, 1967.
T.O. Issued in favour of Muhammad Riaz Malik bearing machine No.75049 in respect of Plot Khasra No.2498 measuring 6 Kanals, 9 Marlas and 51 sq. Ft. On 29-12-1976 having been procured by associating with so-called transferee Mian Jamal Din on the basis of Transfer Order, dated 22-2- 1965 of the then D.S.C.-I, of Lahore. The said order has not been categorically accepted having been passed by Khan Nasir-ud-Din Khan as stated by him before the undersigned in his statement, dated 16-8-1980. He stated that the signatures available on page No.25 on date 22/2 appear to be like his own signatures but he cannot say definitely that the signatures are of his own.
Similarly he denied to substantiate the other initials and signatures available on the plot file made available to me. On my cross-examination the said witness stated that being an old story he did not remember that he had dealt with the file pertaining to Khasra No.2498, Sundar Das Road, Lahore. The above statement of the Officer was recorded after showing the relevant papers to him in the presence of the parties and their respective counsel. Since the transfer order, dated 22-2- 1965 of the D.S.C.-I, Lahore, on the pro forma available on the file has not been accepted having been signed by the then D.S.C. Khan Nasir-ud-Din Khan and there is no such evidence available in the survey register pertaining to Sundar Das Road about his possession or any entry exist about this Khasra No.2498 in the assessm ent register as well as no entry exist in the relevant C.S.C-IV register with regard to the transfer of this plot and on the other hand Jamal Din so-called transferee has failed to produce any documentary evidence to prove his possession over the plot and simply relied upon the attested copy of the allotment order of 1953 duly attested by an Oath Commissioner while he could not produce the original one despite repeated directions in this behalf. So the transfer order of 22-2-1965 of the plot in favour of Jamal Din is a fabricated and as such the T.O. Got issued in favour of Muhammad Riaz Malik on the strength of the said transfer order being associatee with Jamal Din is hereby recalled and has no further legal effects.
The result is that the plot in suit bearing Khasra No.2498 Sundar Das Road, Lahore, measuring 6 Kanals 9 Marlas and 51 sq. Ft. Is thus, declared as available for disposal under the prevailing scheme (Management and Disposal of Available Urban Residual Properties).
Before parting with this order it is mentioned that Muhammad Riaz Malik as per record took over the possession of the plot in the middle of year 1975, raised construction thereon in the presence of stay order and has completed his residential building for his own residential purposes. "
5.Learned counsel for petitioners in Writ Petition No. 143/R of 1982 has argued with vehemence that aforesaid petitioners were unjustly penalized for non-availability of record, power of attorney in favour of Sheikh-ul-Islam by his W real brother Zia-ul-Islam and that offer of bid by Sheikh-ul- Islam on behalf of his brother Zia-ul-Islam was unauthorised. According to him, file was allowed to travel and pass through different hands including police and in such a situation misplacement or loss of document was probable. Lamenting this aspect, it has been impressed that this fact could not be glossed-over and in any event the petitioners could not be punished, without any fault on their part. Inter alia, it has been contended, that very issuance of P.T.D. In tavour of petitioners clearly suggests availability of power of attorney on record, and also it was before the authorities, who accepted the bid by Sheikh-ul-Islam on behalf of his brother Zia-ul-Islam; non-availability of power of attorney 19 years after the issuance of the P.T.D. In favour of petitioners could not be questioned; the respondent No.1 misconstrued the record while holding that payment had not been made by Zia-ul-Islam, the auction purchaser because he had later received cash compensation against his C.B. In 1965 and that it could not be verified by entries in Register CSV-V; office memorandum copy Annexure "A/1", and copy of. An order, dated .3-6-1967 speak loudly ,about the payment; in any event. P.T.D. In favour of petitioners could not be cancelled on ground any non-- payment and at the worst the petitioners were liable to be called upon to make the payment, recoverable as arrears of land revenue; the respondent No. l hastily, jumped to the conclusion that P.T.D. Was never issued in their favour; same was cancelled, without examining Mr. Abdul Hafeez, D- S-C. Whose signatures appear on P.T.D. Produced by the petitioners; respondent No.1 gave undue weight to the fact that P.T.D. In favour of petitioners was not available in any register and page 14 of the relevant register on which its existence was being claimed by petitioners is blank; respondent No. l ignored the fact that record was tampered with by the officials of the department, who, issued several forged P.T.Ds. Regarding this plot and in the process might have destroyed the record of original of P.T.Ds. In favour of the petitioners; undue importance was given to the statement of N.A.
Shah allegedly made before police as not to have signed agreement of association; such statement is not admissible to evidence and that the order, dated 4-11-1981 passed by Deputy Settlement Commissioners is without lawful authority and of no legal effect.
6. Conversely, learned counsel representing Muhammad Riaz Malik petitioner in Writ Petition No.693/R of 1981 has lambasted above arguments and submissions and assailed the impugned order on the grounds that respondent No. l misappreciated the statement/evidence of Khan Naseer-ud-Din Khan, Deputy Settlement Commissioner, and rather measured it crudely in the scales of conjectures. According to him, he never disowned his signatures on T.O. And rather with fading memory, failed to recapitulate with clarity. It has been remarked that self-contradictory observations regarding possession of petitioners over the disputed plot were made. Also it has been stressed that Deputy Settlement Commissioner did not bother and care to inspect the register in possession of the Department relating to allotment order passed in 1953 in favour of Jamal Din, predecessor-in-interest of Muhammad Riaz Malik, who, had become real owner. It has, therefore, been canvassed that the property was no more available for auction and the Department had become "functus officio".
7. Ch. Inayat Ullah, learned counsel representing the Settlement Department has opposed both the petitions with the assertions that as a result of fulfledged inquiry, in which adversaries were afforded full opportunity of hearing. P.T.D. And T.O. Respectively, in their favour were found bogus, forged and fabricated and the property was rightly declared to be available for disposal as envisaged by the Scheme of Management and. Disposal of Available Urban Residual Properties. '
8.Arguments have been considered in light of record and law on the subject.
9.As observed and held in Writ Petition No.889/R of 1977, if disputed property is proved to have been transferred and disposed of by the Department through a valid P.T.D. Or T.O. Before repeal of Act then no jurisdiction is left p to deal with such a matter any further. Analysis of record is to be undertaken in were thereof and matter is liable to be sifted in this perspective.
10. In K.M. Syed etc. Case (Writ Petition No.143/R of 1982)' picture is very clear. Original of P.T.D. In their favour was not available on the relevant register at any of its pages and page 14 from which P.T.D.
Is stated to have originated was found blank. Even petitioners do not deny this factual position.
Their claim. Rather, is that original page 14 of the register might have been misplaced or removed during mishandling of old record which changed many hands including police. In that eventuality even, they 'could conveniently produce and lead secondary evidence to prove issuance of P.T.D. In their favour. But no effort was made in this direction. Similarly the respondent No. l thoroughly examined the aspect of non-payment of bid amount to their credit. Here again they are not certain about this payment and advance a vague plea that this amount can be recovered from them as arrears of land revenue. It is not their claim that after paying huge amount, any endeavour to take possession of disputed property was ever made. This aspect and absence of power of attorney, said to have been executed by Zia-ul-Islam in favour of Sheikh-ul-Islam, authorising him to take part in auction on his behalf and categorical denial of N.A. Shah 'in respect of association with Zia- ul-Islam impair their claim beyond repair. Evaporation of entire record puts last nail in the coffin of their stand. These factors suggest no other conclusion than that arrived at in the order, sought to be impeached and set at naught, and rather no other view is possible. In face of detected chicaneries, P.T.D. In possession of said petitioners, cannot be taken to be genuine document and thus, their petition is devoid of force and bereft of substance. Same accordingly merits rejection as logical culmination, claim being playably fallacious.
11. Case of Muhammad Riaz Malik, is however, on different footing. Deputy Settlement Commissioner called for and received in evidence the Rehabilitation Register, the C.S.C.-IV Register and Survey Register and observed that it contained no entry regarding Jamal Din predecessor-in- interest of Muhammad Riaz Malik having paid the rent or having been in occupation of plot.
However, in absence of above record, concerned officials namely Muhammad Ismail, Settlement Inspector, Abdul Aziz, U.D.C. Maulvi Muhammad Hanif, Senior Clerk, Rashid Ansari, Settlement Clerk, Allah Wasaya, Senior Clerk of Record Office, Zahid Butt, Junior Clerk, Muhammad Sabir, Senior Clerk, Abdul Hamid Chishti and Muhammad Aslam then Junior Clerks, of D.S.C.-I, Office, Lahore and Officers like Muhammad Amin Shah, A.A.D. Plot, Khan Nasir-ud-Din Khan the then D.S.C.-I, Mr. G.S. Khokhar the then A.A.O.I., Mr. Muhammad Manzoor Khan, A.A.O. Record, Lahore were examined during inquiry.
12. Muhammad Ismail, the then Settlement Inspector of Plots D.S.C.-1 Office Farid Kot House, testified that pro forma for the transfer of plot Khasra No.2498 Sundar Das Road, Lahore in favour of Jamal Din was available on plot file He confessed his signatures, dated 26-1-1965 thereon. He further admitted that he had recommended the transfer of plot. It was also deposed by him that Khan Nasir-ud-Din Khan. The then D.S.C.-I had signed said pro forma in his presence. He added that in the year 1965 or before or thereafter similar pro formas were oftenly used for the purpose of transfer of plots available fort transfer under Settlement Scheme No.VI. He narrated that site plans of sites were prepared by officials before submission of their report to the officers in the Settlement hierarchy. But in the instant case, he was not sure due to lapse of sufficient time. Khan Nasir-ud-Din Khan deposed that on page 25 of the Transfer File of plot No.2498 his signatures were available. He testified that these signatures appeared to be his own. But he was unable to say with certitude that said signatures were in his own handwriting. Apparently, this cannot be termed even an evasive denial. At the first instance he admitted his signatures but with hesitation. Similar waivering attitude was displayed by him about signatures on page 27 regarding assessment of the price. He added that he did not remember spot inspection of the site before passing the order, dated 22-2- 1965. Accounts Officer admitted his initials on pages 43 to 63 of the plot file. Jamal Din transferee of plot was examined on 15-9-1980. He categorically deposed that he had filed plot form on 30-11- 1959 under Settlement Scheme No.VI in his capacity as an allottee and in possession of the plot since 1953. Construction of six big rooms over the plot was claimed by him. He added that he had purchased compensation book bearing Machine No.295406/Lhr/V from Muhammad Yousaf Awan as per agreement deed, dated 10-3-1965 available on case/plot file. He also moved an application alongwith agreement. Same, too, was available on record. After adjustment of Rs.75,000 from this compensation book, he surrendered his entire rights in the plot in favour of Muhammad Riaz Malik, per agreement, dated 15-12-1976 as on page 67 of plot file. It was presented by Muhammad Riaz Malik with an application for issuance of Transfer Order. Statements of Jamal Din and Muhammad Riaz Malik were taken down on the back of agreement deed. Mr. Abdul Aziz, Syed Muhammad Amin Shah and Muhammad Fayyaz Qureshi, D.S.C. Also appeared during inquiry and they, too, admitted the preparation of account, completion of S.S.V. Register, closing of Accounts and issuance of T.O.
No.75049 genuinely.
13. Seemingly Inquiry Officer attached more sanctity to the record, which was not available whereas this deficiency stood made up with candid admission of most of officers/officials, who had been dealing with the case, as indicated above. There was a shred of hesitation in the statement of Naseer-ud-Din Khan. But this slight uncertainty was given undue importance. Every page of plot register/file spoke loudly and with clarion voice in favour of Muhammad Riaz Malik. But the Inquiry Officer opted to make mountain out of mole-hill. All the Officers/officials lent support to the version of Muhammad Riaz Malik, but, their depositions were ignored, and kept out of consideration without any rhyme or reason. As a necessary corollary, "faux-pas" was committed by Deputy Settlement Commissioner, who seems to have fallen in ignoratio elenchi in construing these aspects to the contrary.
14. There is yet another aspect of the matter, which cannot be lightly ignored. Transfer Order was acted upon in shape of attestation of Mutation No. 1919, dated 4-1-1977 and the same was duly implemented and incorporated C in Revenue Record like Register of Haqdaran Zamin. Such entries carry presumption of truth unless declared otherwise by competent forum. There was, thus, sufficient and rather overwhelming evidence to infer that plot in question stood transferred for all intents and. Purposes, had gone out of compensation pool and was no more available for auction under the scheme. As such dead horse had been flogged and petitioner Muhammad Ria7. Malik was wrongly divested of his valuable and vested rights in the property, which admittedly and undoubtedly is in his possession and constructions stand raised thereon It appears that such rights had acquired by him after treading a thorny passage replete with depressions and pit-falls in decades. He could not be deprived of the same, in such a sketchy laconic and perfunctory manner.
Rather it stands proved to the hilt that the property, forming the subject-matter of "lis" was no 'more available for auction under the scheme, and could not be taken so.
15. Upshot of above exercise is that Writ Petition No. 143/R of 1982 is hereby dismissed, while Writ Petition No.693/R of 1981 is accepted and impugned order, dated 4-11-1981 to the extent of treating and declaring the plot in question as to be available for disposal under the prevailing scheme (Management and Disposal of Available Urban Residual Properties) is declared to be without lawful authority and of no legal effect and significance and thus, ineffective and inoperative qua proprietary rights of petitioner Muhammad Riaz Malik in respect of the same-