' This judgment will dispose of Writ Petition No,1582/R of 1976 filed by Mst. Taj Begum (since deceased and now represented by her legal heirs), Writ Petition No,1551/R of 1977 brought by legal heirs of Mst. Iqbal Begum and Writ Petition No,384/R of 1978 filed by Hafiz Ullah Siddiqui Romani, to call in question the order of respondent No,1 (Additional Settlement Commissioner) dated 8-11-1976 in respect of transfer of House No,21/A (Property No,S-74-R-18) Queens Road, Lahore.
2. The case has somewhat chequered history. Writ Petition No,1582/R of 1976 will be treated as main petition and reference to parties shall be considered as in this petition. The property is or has been in possession of
(i) Mst. Taj Begum, a non-claimant.
(ii) Mst. Safdari Begum (deceased and now represented by respondents Nos.2 to 9), a claimant.
(iii) Mst. Iqbal Begum, again deceased and now represented by respondents Nos.10 to 17, a claimant.
(iv) Hafiz Ullah Siddiqui Romani, a claimant and
(v) Abdul Majeed, a local.
3. It is pertinent to state here that Abdul Majeed did not file any form of transfer and he does not figure in the present litigation. The story on the Settlement side begins with the proposal of the Assistant Settlement Commissioner dated 4-1-1960 (Annexure "A") by which he proposed the division of the house as well as the portions to be transferred to respective parties. This proposal was approved by the Deputy Settlement Commissioner on 15-1-1960 in the following words.
"Order ' Property in question is transferred to the applicants as suggested by Assistant Settlement Commissioner. F'.T.O. Be issued."
4. This order excluded Mst. Safdari Begum altogether and portion in her possession was given over to Mst. Iqbal Begum: Mst. Taj Begum, writ petitioner was transferred portion in her possession on first floor and additionally she was given the portion in possession of Abdul Majeed, local. Hafiz Ullah Siddiqui Romani was given portion in his possession and one room in possession of Mst.
Safdari Begum.
5. Two appeals are claimed to have been filed against this order. One by Mst. Safdari Begum and the other by Mst. Iqbal Begum. Annexure-D is the order passed by Lieutenant Colonel J.D. Malik, Additional Settlement and Rehabilitation Commissioner on 16-4-1960. According to the writ petitioners this order disposed of the appeals and the order of the Deputy Settlement Commissioner was maintained while according to Mst. Safdari Begum, this order nor any subsequent order disposed of the appeal. Annexure-F is the order dated 12-11-1963 passed by Mr. M.A. Wasti, Additional Settlement and Rehabilitation Commissioner purportedly on the application of Mr. Sajjad Haider Jaffari, respondent No,6 in amended Writ Petition No,1582/R of 1976 (son of Mst.
Safdari Begum and her attorney). The order is to the effect that the appeal of Mt. Safdari Begum stood disposed of by the order of Mr. J.D. Malik and the application of Mr. Sajjad Raza Jaffari for disposal of the appeal was irrelevant. Annexure-L is an order pased by Muhammad Saeed-uz- Zaman, Settlement Commissioner Lahore on Revision Petition No,233 filed by Mst. Iqbal Begum against Mst. Safdari Begum etc. And it reads: "From her statement and affidavit placed on file and also my personal knowledge I declare that Mst. Taj Begum is a displaced person and she migrated to Pakistan because of disturbances as she had decided permanently to stay at All Garh.
' Notice issued under section 20(3) to her is vacated."
6. Notice (Annexure-M) was issued by respondent No,1 to Mst. Taj Begum directing her to attend his Court on 27-10-1976 at 10 a.m. In connection with the above noted subject (S.74-R.IS). She was informed that in case she failed to appear, the case will be decided ex parte. Against the issue of notice Mst. Taj Begum, petitioner, filed Writ Petition No,1568-R of 1976. It was claimed that the matter of transfer of the house stood concluded with the disposal of appeal by Mr. J.D. Malik and revision by Mr. M.S. Zaman, Settlement Commissioner and respondent No,1 has no jurisdiction to reopen the question of transfer after repeal of Settlement Act, 1958. It is pertinent to note here that with effect from 1-7-1974 all the Evacuee and Settlement Laws were repealed and the repealing Ordinance provided that only cases pending at the time of repeal or the cases remanded by the High Court and the Supreme Court shall be dealt with by a notified officer in accordance with the laws being repealed. This petition came up for hearing on 4-11-1976 and was dismissed in limine. It was held that 'the notice only required the petitioner to appear, that the petitioner may appear and bring all the facts to the notice of the learned Additional Settlement Commissioner who will proceed to deal with the matter. It seems thereafter the petitioner and other concerned parties appeared before the respondent No,1 who vide order dated 5-11-1976 concluded that the appeals filed by Mst.
Safdari Begum and Mst. Iqbal Begum had not been disposed of by Mr. J. D. Malik or any other order and that as notified officer he was entitled to decide the pending appeals. After holding in favour of his jurisdiction, respondent No,1 then proceeded to decide the appeals on merit vide order dated 8- 11-1976.
' By this order respondent No,1 held Mst. Safdari Begum to be entitled to transfer of part of the house, being an allottee and a claimant and in this manner differed with the Deputy Settlement Commissioner who have altogether excluded Mst. Safdari Begum. He, however, made certain adjustments in the respective portions. Similarly Mst. Iqbal Begum was held entitled. However, her share was also adjusted. The order of transfer in favour of Hafiz Ullah Siddiqui Romani made by Deputy Settlement Commissioner was upheld. However, his share was also adjusted and he was also asked to use another passage for approach to his portion. The result of the appellate order is that Mst. Taj Begum stands altogether excluded, apparently for the reason that she is a non- claimant and vis-a-vis claimant, she cannot have a better claim/entitlement. Thus, aggrieved and as noted above, Mst. Taj Begum has filed Writ petition No,1582-R of 1976 while Mst. Iqbal Begum as well as Hafiz Ullah Siddiqui Romani have also questioned the order of respondent No,1, at least to the extent it modifies the order of the Deputy Settlement Commissioner in respect of their transfers/ portions.
7. In this scenario the basic and crucial question to be decided is whether appeals of Mst. Safdari Begum and Mst. Iqbal Begum stood decided by order of Mr. J.D. Malik. If the answer be in the affirmative, the consequence will be that it will have to be held that at the time of repeal of Settlement Laws on 1-7-1974 no case was pending for respondent No,1 to deal.' If the answer be in the negative, then of course, the other question whether respondent No,1 was a duly notified officer and was otherwise possessed of jurisdiction to deal with the appeals will need to be decided. The arguments on the respective merits of the orders of the Deputy Settlement Commissioner as well as respondent No,1 have also been addressed and wherever necessary I would proceed to deal with them.
8. Since order of Mr. J.D. Malik dated 16-4-1960 is of critical importance to these petitions, it is appropriate to reproduce it in toto.
"These are two appeals against the order of learned Deputy Settlement Commissioner Lahore dated 15-1-1960 whereby he has disposed of Property No,21-A Queens Road, Lahore to Mst. Iqbal Begum, Taj Begum, H.U. Romani. Against this the first appeal is by Mst. Safdari Begum and the second appeal is by Mst. Iqbal Begurn. The learned counsel for Mst. Safdari Begum pointed out that the learned Deputy Settlement Commissioner was not within his right to transfer the property; as the case was sub judice. He relies on clause 17 of Settlement Scheme No,I.
' The facts of the case are that the case has been decided on 15-1-1960 whereas the latest orders from the High Court of West Pakistan dated 9-1-1960 indicate that the case was at that time sub judice in that Court. The directions of the High Court are that the Rehabilitation Commissioner should decide the case of allotment after summoning both the parties. In view of this it is obvious that the allotment will have direct hearing on the transfer of the property to various parties.
However, it has not been very clearly established whether the learned Deputy Settlement Commissioner knew that the case was at that time sub judice. Therefore, in my opinion whatever harm had been done need not at this stage be undone as it has not materially affected the position. In the meantime status quo should be maintained and parties are directed to pursue the case in the Court of learned Rehabilitation Commissioner."
9. The language employed in the order may be somewhat ambiguous but if read as a whole and it has to be read as a whole to interpret it, it does not show that the appeals have been disposed of.
Not a word has been expressed about the correctness or propriety of the division made by the Deputy Settlement Commissioner and the portions transferred to respective parties. Not' a word has been expressed as to why Mst. Safdari Begum a claimant has to be excluded and Mst. Taj Begum, a non-claimant, has to be awarded her portion. If this order can be said to have finally disposed of the appeals then the appellate order must have answered these questions. It seems the learned Officer was informed that a dispute as regards allotments between the heirs of Dr. Muhammad Iqbal and Mst. Iqbal Begum on one side and exchange of allotment between Mst.
Mumtaz Begum, widow of Muhammad Iqbal and Mst. Safdari was pending on the rehabilitation side. This dispute on the rehabilitation side ultimately culminated in the decision given by this Court on 4-3-1974 in Writ Petition No,722-R of 1970. Mr. Justice Shafiur Rahman upheld the order of the Rehabilitation Commissioner, dated 16-6-1970 and dismissed the writ petition brought by Mst. Iqbal Begum and her son S.O. Ahmed. Under the order dated 16-6-1970, the Rehabilitation Commissioner has substituted Mst. Mumtaz Begum, widow of Muhammad Iqbal, the original allottee, as allottee after his death in 1956 and also upheld the exchange of allotment entered into between Mst.
Mumtaz Begum with Mst. Safdari, the latter gave her allotment of property known as 49-Mozang Road Lahore in favour of allotment in the suit property. The conclusion that Mr. J.D. Malik never disposed of the appeal is fortified by the legal position as contained in para. No,17 by Settlement Scheme No,I and requires that pending decision of allotment on rehabilitation side, the transfer on settlement side be postponed. Mr. J.D. Malik clearly states that the parties should maintain status quo and directed them to pursue the case in the Court of the learned Rehabilitation Commissioner.
The confusion is arising because Mr. Malik did not record that the appeals are adjourned sine die or they are kept pending and will be taken up after decision on the rehabilitation side.
10, Raja Muhammad Anwar, Advocate, backed by other learned counsel, in support of the proposition that Mr. J.D. Malik disposed the appeals strenuously relied upon the order of Mr. M.A.
Wasti, Additional Settlement Commissioner/Rehabilitation Commissioner, dated 12-11-1963 (Annexure "F"). He stated that this order clearly gave a verdict that the appeal of Mst. Safdari stood disposed of. Mr. Anwar stressed that this order was passed on the application of Mst. Safdari after hearing Mr. Sajjad Raza Jaffari, Advocate, her son and as it has not been challenged, the same has attained finality with the result that it will have to be concluded that the appeal of Mst. Safdari Begum stood disposed of. This argument cannot be accepted. The order passed by Mr. Wasti at best is an opinion to the effect that Mr. J.D. Malik, has disposed of the appea. This order or opinion has been given on the executive side and not on the judicial side. Purely on a legal plane, if an appeal is held to be pending and not disposed of, the opinion of another officer on executive side, that it has or. Has not been disposed of, is immaterial. Respondent No,1 has also given gold reasons in his order dated 5-11-1976 to conclude that the order of Mr. Wasti is a mere opinion not binding on an officer acting on the judicaial side. Admittedly two appeals, one by Mst. Safdari Begum and other by Mst. Iqbal Begum, were filed and according to Mst. Taj Begum, these two appeals stood decided by Mr. J. D. Malik, And support for this claim is sought from the order of Mr. Wasti but the order of Mr. Wasti talks of only appeal of Mst. Safdari Begum and not of Mst. Iqbal Begum. In other words even if Mr. Wasti's ipsi dixit is taken to be final and binding, the appeal of Mst. Iqbal Begum will have to be deemed to be pending. I, therefore, uphold the reasoning and finding of respondent No,1 given in his order dated 5-11-1976 that the order of Mr. J. D. Malik, never disposed of the two appeals. It may be noted that it is not the case of the petitioners that any other order decided the appeals. It is held that the appeal remained undisposed of till 1-7-1974, the date of repeal of the Act of 1958.
11. Raja Muhammad Anwar has also contended that the transfer in favour of Mst. Taj Begum was examined by Mr. Muhammad Saeed-uzZaman, Settlement Commissioner, Lahore who vide his order, dated 14-1-1965, Annexure "L", upheld the same by withdrawing notice issued under section 20(3). Mr. Zamir Hussain, Advocate, ' has refuted the contention by urging that Mr. Saeed-uz- Zaman was not a Settlement Commissioner especially empowered by the Chief Settlement Commissioner as required under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958 and, therefore, his order is void. He has relied upon the case of Sh.
Barkat Ali v. (1) M.S. Zaman, Additional Settlement Commissioner with Powers of Settlement and Rehabilitation Commissioner, Lahore. (2) Mst. Shahzadi Begum, and (3) Syed Ijaz Hussain Shah, Settlement Commissioner, Lahore PLD 1968 Lah. 770 at p.783, in support of this contention. By referring to Annexure "G" he has further contended that the only question raised before him was whether Mst. 'raj Begum was a local and, therefore, not entitled to transfer. He explained that it best the order of Mr. Saeed-uz-Zaman dated 14-1-1965 will be deemed to have answered this question and this conclusion is confirmed by the tenor of the order. He has further urged that since Mr. Zaman imports his own personal knowledge, his order is vitiated.
12. The perusal of the above judgment (Barkat Ali) supports the contention of Mr. Zamir Hussain, Advocate. At Page No,783, a finding has been recorded that at the relevant time (28-10-1964) Mr. Saeed-uz-Zaman was not a Settlement Commissioner especially empowered by the Chief Settlement Commissioner under section 20(3). No material has been placed on record by the petitioner to show that on 14-1-1965 the date of order Annexure "L", the situation was different. The order of Mr. Zaman, therefore, is void in law. I also find that at best this order can only show that Mst.
Taj Begum was not a local and in fact was a displaced person and as will be noted in later part of the judgment, a non-claimant displaced person like Mst. Taj Begum has no preferential right over a claimant displaced person like Mst. Safdari Begum or for that matter Mst. Iqbal Begum.
13. The next question to be addressed is whether respondent No,1 was notified officer and was otherwise competent to decide the appeals. The answer I have given is in the affirmative. I have found and held that the two appeals were pending on 1-7-1974 when the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, (Ordinance XV of 1974) was promulgated. Under the repealing statute pending cases could be heard and decided by the notified officer.
Respondent No,1 was such an officer by virtue of notification dated 4-2-1976 issued by the Board of Revenue Punjab whereby respondent No,1 was given the powers of Additional Settlement Commissioner/Additional Claims Commissioner for the territory of Lahore Division. It is pertinent to note hear that by Act LV of 1973 enforced on 30-7-1973 certain amendments were made in Evacuee Property and Displaced Persons Laws. Section 1 of this Act indicated the amendments made in the relevant laws as mentioned in the Schedule to the Act. Serial No,1 of the Schedule amended the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The original section 20 of this Act was substituted. The Settlement Commissioner was given the powers of revising the orders of the Assistant Settlement Commissioner, Deputy Settlement Commissioner and Additional Settlement Commissioner. Subsection (2) of amended section 20 provided that "all appeals pending before the Deputy Settlement Commissioner or Additional Settlement Commissioner shall be transferred to and be disposed of by the Settlement Commissioner as revision petition under this section". In other words by operation of this provision the appeals filed by Mst. Safdari Begum and Mst. Iqbal Begum stood transferred to Settlement Commissioner for disposal as revision. This happened on 30-7-1973. Subsequently with the repeal of Displaced Persons (Compensation and Rehabilitation)
Act, 1958 on 1-7-1974, these pending appeals converted into revisions by force of law, could be decided by the notified officer. I, therefore, hold that respondent No,1 was fully competent to decide pending appeals converted into revision by force of law.
14. Raja Muhammad Anwar has also contended that the impugned order dated 5-11-1976 is in conflict with the order of this Court dated 4-11-1976 passed in Writ Petition No,1568-R of 1976, filed by Mst. Taj Begum against the issue of notice by respondent No,
1. He has, in particular, relied on Para. No,4 of the order, which is reproduced:--- "The order of transfer in favour of the petitioner was subjected, as seen above, to suo motu revision under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by Mr. Saeed-uz-Zaman, learned Settlement Commissioner and the learned Settlement Commissioner vacated the notice issued under the aforesaid provision of law, thus, putting the seal of finality to the transfer. This happened in 1965. More than a decade later, how can it be interfered with?"
15. Mr. Zamir Hussain, Advocate, has met this argument by saying that the above is only an observation and it cannot be equated with the finding as the writ petition was dismissed in limine.
It is urged that in order to make the above observation binding, the respondents and all other interested parties ought to have been heard. He has submitted that any observation made or finding recorded or decision given, without hearing the affected parties, is not binding on such parties.
16. While it is correct that the language used in the above paragraph is quite positive but it is difficult to agree with Mr. Muhammad Anwar that this should be treated as a finding and it should be held to be binding on the parties who were not heard at the time of passing the order dated 4- 11-1976. With respect I would say that the above will have to be treated as a passing observation as his Lordship was dismissing the writ petition in limine and directing Mst. Taj Begum to argue jurisdictional facts before respondent No, 1 . If his Lordship was giving a final and conclusive finding, at least the petition would have been admitted to full hearing and proceedings before respondent No,1 stayed. Admittedly this did not happen. It is pertinent to notice that the judgment in Barkat Ali's case PLD 1968 Lah. 770 holding against the authority of Mr. Saeed-uz-Zaman as specially empowered Settlement Commissioner was not brought to his Lordship's notice. I would, therefore, hold that this Court left the field wide open for decision by respondent No,1 on the question of jurisdiction as well as on merits of the case.
17. Syed Zamir Hussain, Advocate, has highlighted the merit of the case so as to show that the order of the Deputy Settlement Commissioner is highly illegal and infirm in law. He has elaborated that:--
(i) the Deputy Settlement Commissioner has merely accepted the proposal of the Assistant Settlement Commissioner without application of mind;
(ii) he has seemingly by acted on the executive side although valuable rights of the parties were involved;
(iii) he has not heard the parties nor given them any notice before partitioning the property and transferring various portions, in particular, he condemned his clients unheard d;
(iv) he could not have transferred any property tc Mst. Taj Begum who was a non-claimant and had no preference of even equal right with the claimant.
' For the later reason he has relied on the cases of Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre ' A' 1 arachi and others and Sh. Rehmatullah v. The State and another PLD 1963 C 633, Ilam-ud-Din v. The Chief Settlement and Rehabilitation Commission r and four others PLD 1965 SC 615 and Mushtaq Ahmad v. Settlemmt and Rehabilitation Commissioner, Lahore and 2 others 1981 SCM R 706. He has further highlighted that the Deputy Settlement Commissioner acted in utter haste in disposing of the property even though the parties were litigating on the rehabilitation side and relevant provision clearly debarred the transfer on Settlement side until the decision of controversy on rehabilitation side. Not much has been said by Mr. Muhammad Anwar on the merits of order passed by the Deputy Settlement Commissioner. Undisputedly the Deputy Settlement Commissioner passed the order without notifying the parties and without giving them any opportunity to assert their rights or to give counterproposal. The order passed without hearing has been described as void in number of judicial pronouncement. Keeping in view the relevant statutory provision as in existence in 1960, Mr. Zamir Hussain is correct that a non-claimant could not have been preferred over claimant/allottee in possession. The perusal of the impugned order dated 8-11-1976 shows that it has apparently, cured manifest illegality committed by the Deputy Settlement Commissioner. While excluding Mst. Taj Begum it has made adjustment in the respective shares of other parties which seem to be just and proper. The principle contained in the case of Ronaq Ali reported as PLD 1973 SC 236 is, therefore, attracted, to the facts and circumstances of this case. I have already held the impugned order to have been competently passed but for the sake of argument if it be considered that the impugned order is illegal, or even suffered from absence of jurisdiction, this Court can still refuse to exercise writ jurisdiction against the same on the ground that the impugned order cures a manifest illegality committed by the Deputy Settlement Commissioner and it otherwise tends to do justice between the parties. Mr. Zamir Hussain, Advocate, has attempted to show that even the impugned order does some injustice to his client but he frankly stated that in order to finish this long-standing dispute his clients are prepared to accept the order as it is.
18. It has also been argued that petition brought by Hafiz Ullah Siddiqui in 1978 suffers from laches. It is also contended that all the writ petitioners even though having conflicting interest in the litigation before the Settlement Department, somehow have joined hands in a conspiracy against respondents Nos.2 to 9.
19. In view of what has been recorded above these and other submissions need not be commented upon as they are not germane to the disposal of the petition. Suffice it to say that it would be inequitable if the objection of laches is upheld after 21 years of the pendency of writ petition.
Similarly nothing turns on the objection of Mr. Zamir Hussain, Advocate that two of the heirs of Mst.
Safdari Begum have not been impleaded. This technical objection need not be given effect to in view of the findings recorded above. In any case the estate of Mst. Safdari Begum is duly represented by other legal heirs.
20. For all the above reasons, I see no merit in these petitions which are hereby dismissed with costs.