JUDGMENTRAJA MUHAMMAD SABIR, J.- This Constitutional petition under Article 199 of the Constitution is directed against the order dated 15.4.1986 of the Notified Officer in pursuance to the remand order passed by this Court, whereby he transferred the house as a one unit in favour of respondent No.8 on account of surrender of rights by respondents Nos.2 to 7 in his favour.
2. Brief facts of the case are that property No. SE-4-25-S-23 situated in Nanak Street No.25, Qilla Gujjar Singh, Lahore was being claimed by the petitioner as well as Fazal Muhammad Khan, predecessor-in-interest of respondents Nos.2 to 7. The petitioner being a claimant displaced person is alleged to be in possession of four rooms of the aforesaid house since 1947. The property was transferred to him through PTO on 21.1.1960. Fazal Muhammad Khan, predecessor-in-interest of respondents Nos.2 to 7 applied to the Deputy Settlement Commissioner that without disposing of his C.H. Form the property could not be transferred to the petitioner. The said application was dismissed on 11.7.1961.
Fazal Muhammad Khan filed review petition on 13.7.1961 whereupon the Deputy Settlement Commissioner sought permission from the Addl. Settlement Commissioner to review which was granted on 21.8.1961. Thereafter on 1.12.1961 the entire house was transferred to Fazal Muhammad Khan. The petitioner filed on appeal against the order dated 1.12.1961 before the Addl. Settlement Commissioner which was accepted on 15.11.1962. Fazal Muhammad Khan filed a revision against the order dated 15.11.1962 whereby the matter was referred to D.S.C., for enquiry on the following points:-
1. Whether the document purporting to be an allotment chit is a genuine one?
2. Whether Fazal Muhammad's wife made a statement on behalf of her husband to the effect that he had no objection to the house being transferred to Zaheer-ud-Din?
3. Who out of the two contestants occupied the premises first?
The D.S.C, submitted his report on 30.6.1969 whereupon the revision was accepted and the property was transferred in favour of Fazal Muhammad Khan on 6.11.1973. The petitioner filed W.P. No. 417- R/74 which was accepted on 1.7.1976 and the case was remanded to Notified Officer for decision afresh. Fazal Muhammad Khan filed petition for leave to appeal but was dismissed by the Supreme Court on 8.3.1983. The petitioner, thereafter, has been making applications (Annexures A/1 to A/6) requesting the department for disposal of the case in the light of the remand order passed by this Court on 1.7.1976. In January, 1993 it came to the knowledge of the petitioner that at his back the impugned order dated 15.4.1986 has been passed by the Notified Officer transferring the aforesaid entire property in favour of respondenKNo.8 and in pursuance thereto transfer order has also been issued on 16.7.1990. Proceedings of the Notified Officer at page 33 to 46 indicate that one M.A.
Qureshi, Special Attorney of the petitioner put in appearance but subsequently absented himself, resultantly the impugned order was passed ex-parte.
3. Learned counsel for the petitioner contends that he had not appoined the so called M.A. Qureshi as his special attorney. He, however, states that the petitioner had. Appointed Muhammad Umar Qureshi as his special attorney on 20.3.1960 for a limited purpose. He claims that M.A. Qureshi, the alleged special attorney was a fake person put up by the respondents to get the disputed property in a calendestine manner. The learned counsel argued that he was condemned unheard. He acquired knowledge of the impugned order in January, 1993 and immediately thereafter, filed the writ petition on 8.5.1993. He submits that merits of the case have not been properly appreciated by the Notified Officer on account of absence of the petitioner during the proceedings. He further submits that the petitioner and the respondents are residing in the disputed house since partition.
The policy of the Government and settlement operation is to accommodate maximum number of refugees but through the impugned order the whole house consisting of 22 rooms in violation of the object of Settlement laws has been allotted to respondent No.8. The Notified Officer has wrongly concluded that the property is not capable of division. If the impugned order is allowed to remain in the field, the petitioner, contrary to the object of settlement laws, shall be deprived of the portion of the house in his possession, since 1947. In support of his contention, learned counsel has relied upon three judgments of the Supreme Court, viz, Barkat Ali v. Settlement and Rehabilitation Commissioner Multan and 8 others (PLD 1991 S.C. 610), Mst. Shah Jahan Begum v. Mst. Shabhir Fatima and another (PLD 1991 S.C. 614) and Mst. Shahzada Begum v. Ahmad Ramai and 18 others (PLD 1991 S.C. 617).
4. Abdul Latif Khan respondent No.8 has only come forward to contest this petition as the remaining respondents Nos.2 to 7 have relinquished their rights in his favour. He is the sole contestant against claim of the petitioner.
5. Sh. Anwaar-ul-Haq, learned counsel for respondent No.8 submits that the petitioner has challenged the impugned order dated 15.4.1986 after a lapse of 7 years as such this writ petition suffers from laches and is liable to be dismissed on this score alone. He further submits that M.A.
Qureshi, special attorney appointed by the petitioner has been appearing before the Notified Officer but subsequently he absented himself, consequently the Notified Officer was constrained to decide the case on merits in his absence. He maintained that Fazal Muhammad Khan was entitled to, the transfer of the house as one unit and the impugned order does not suffer from any legal infirmity calling for interference by this Court.
6. I have heard the learned counsel for the parties at length and perused the record with their assistance.
7. The averment of the petitioner in ground (d) of the petition is that respondent No.1 has not averted to the question of divisibility in any justifiable manner and has rather tried to avoid a decision thereon without any justification whatsoever. The findings of the Addl.
Commissioner/Notified Officer in relation to the divisibility of the property find mention in para No.6 of his order. He observed that the spot was inspected by him on 1.3.1986. The house has only single main entrance. It has also a single staircase. It is without any courtyard. The property was constructed by the evacuee owner for the use of one family. The rooms of the house are of very small size. The area of the house is less than seven marlas. Division can only be made by demolishing and altering the nature and structure of the entire property. He further observed that the nature of the structure is such that is cannot be divided, therefore, he held that the property was not capable of division.
8. The aforesaid findings given by the Notified Officer in the impugned order are not sustainable keeping in view the policy of settlement operation and the judgments of the Supreme Court relied upon by the learned counsel for the petitioner. The petitioner and Fazal Muhammad Khan are residing in the house since Partition. Physically it is proved that the property can accommodate both the families. Admittedly the house consists of 22 rooms out of which four are in possession of the petitioner. There is no other contestant meaning thereby that except the four rooms, the remaining property shall go to respondent No.8. The Supreme Court in the case of Barkat Ali (supra) observed.
"Be that as it may, there is a third course which can safely be adopted in this case. The Deputy Settlement Commissioner while passing the order dated 20.7.1960, impugned before the High Court did not notice physical division of the property. It was also apparent from the order of the Asstt.
Settlement Commissioner dated 5.5.1960 which was admittedly before him and is mentioned in his on order. After having become conscious of this physical aspect of division in reality (and that too for a long time) of the house into two parts, it is absolutely reversal and contradiction of this reality when he observed that the "house is not divisible". Apart from the fact that the word not might not have been used the fact remains that there is absolutely nothing in the order to show that in view of the admitted physical division of the house between the parties how did he came to the conclusion that it was indivisible. Thus this observation or finding was without application of judicial mind."
In the case of Shahjahan Begum (supra) it was held: "It is admitted position that the appellant has only a small part of the house in her possession while the respondent has much bigger part thereof. Therefore, while exercising the jurisdiction in the nature of Writ as is available to the High Court, this Court would also try where- ever possible, in the settlement cases to adjust and accommodate as many displaced persons as possible. We have, therefore, decided to refrain from examining the question on which leave to appeal was granted.
Instead as other points including that of divisibility were not excluded from consideration in so far as the language of the order is concerned, we decide appeal on the point of divisibility alone as discussed above. As a result thereof it is allowed. The impugned judgment of the High Court as well as the order of the Settlement Commissioner are set aside. The house in dispute shall be deemed to have been divided, in accordance with what the Settlement Commissioner found at the spot, in two parts in exercise of this power under Section 2(4) in accordance with the possession of both the parties."
Similarly in the last judgment of Shahzada Begum (supra) the Supreme Court held:- " Proviso to Section 2(4) of the Displaced Persons (Compensation and Rehabilitation)Act through the passage of time stands interpreted by the Superior Courts in such a manner that failure to apply independent mind to the question of divisibility has been treated as failure to exercise power vested in the officer. This properly is in line with the spirit of the legislation and its main and important objects one of them being to accommodate and adjust as many displaced persons as possible. If this principle underlying the Proviso to Section 2(4) would have been kept in mind by the concerned Settlement Authority the result would have been different. Thus it is a case in the above context of failure or refusal to exercise power under Section 2(4) and thus the order impugned before the High Court was rendered without lawful authority. The High Court rightly in exercise of its Writ jurisdiction declared it so."
8. Keeping in view the aforesaid judgments of the Supreme Court, it is absolutely clear that the Settlement Commissioner/Notified Officer has not considered the importance of respective possession of the parties over the property in dispute while declaring that it was indivisible.
Physically and practically it has been established by passage of time that both the parties are living in the property peacefully since 1947. The petitioner is in possession of 4 rooms and at such a belated stage throwing him out from his portion when settlement operation has almost concluded, would amount to frustration of main object and policy of the settlement aimed at to accommodate maximum displaced persons. Transfer of the four rooms in possession of the petitioner in the suit property would be just, equitable and in line with the judgments of the Supreme Court referred above.
9. The objection of laches raised by respondent No.8 has been satisfactorily explained by the petitioner by referring to the applications submitted by him to different authorities including the Federal Ombudsman for decision of the case in the light of remand orders passed by this Court on 1.7.1976. It is evident from his conduct that the petitioner has been struggling from pillar to post for decision of the case as early as possible. Petitioner was not contestant for transfer of disputed property. It is not believable that he has slept over the impugned order inspite of its knowledge. This objection is, therefore, unsustainable and repelled.
10. The special attorney of the petitioner, M.A. Qureshi who has been appearing in the proceedings before the Notified Officer and subsequently absented himself, does not appear to be the genuine special attorney of petitioner. The special power of attorney executed by the petitioner is annexed with this petition and is in the name of M.U. Qureshi (Muhammad Umar Qureshi) and not M.A.
Qureshi. Moreover, the petitioner has denied the execution of power of attorney in the name of M.A.
Qureshi and has alleged that it was a fictitious person put up by the respondents to keep the proceedings of Notified Officer concealed from him'. There. Js no need to go further in this technical objection as the impugned order was admittedly passed in absence of the petitioner. The Supreme Court in various judgment has laid down that "justice should not be sacrificed at the altar of technicalities."
11. As a result of above discussion, the impugned order dated 15.4.1986 is declared illegal and without jurisdiction. After such declaration, remand of the case to Notified Officer for another round of litigation shall prolong unnecessary agonies of the parties and shall not serve the ends of justice.
In the light of aforesaid judgments of the Hon'ble Supreme Court, the disputed property is held to be divisible on account of its physical condition since 1947 and having peacefully accommodated both the claimant displaced persons. The petitioner is accordingly transferred four rooms already in his possession in the disputed property. He shall also be entitled to use staircase jointly with respondent No.8. There is no other legal hurdle in transferring both the divided parts to the respective claimants in accordance with their possession. Further action for sharing of price by the two transferees and issuance of transfer documents shall be taken by the concerned functionaries.
The petition is disposed of in the terms indicated above. There shall be no order as to costs.