RAM MUHAMMAD SABIR, J. - Muhammad Hafeez (deceased petitioner now represented by his LRs) tiled this Constitutional petition against Muhammad Yousaf (deceased respondent No. 2 now represented by his LRs) and one Rasheed Mahmood (respondent No. 2) in addition to Settlement Authorities, with a prayer that Transfer Order No. 42727, dated 14.1.1974 issued in favour of Rasheed Mahmood son of Nawab A.I be declared to have been issued in respect of shop No. 8/369-E and not for shop No. 8/369-F which is still available for transfer in view of order of Settlement Commissioner dated 1.7.1971, It is further prayed that the order of Member Board of Revenue Punjab, Lahore, communicated through Additional Settlement Commissioner (Urban) vide letter No. 236, dated 31.3.1980 and the order of Additional Deputy Commissioner (General) dated 16.2.1987 be adjudged as void ab initio without jurisdiction and nullity in the eye of law, with a consequential prayer that Additional Deputy Commissioner (General) Gujrat he directed to transfer shop No. 8/369-F in favour of the petitioner's predecessor.
2. Briefly the facts of the case are that shop No. 8/369-F situated in Lala Musa, Tehsil Kharian, District Gujrat, according to the petitioner, was occupied by their predecessor as well as his brother, namely, Abdul Qadir, in the year 1947. Muhammad Hafeez petitioner (who died during pendency of the writ petition and is now represented by his L.Rs.) applied for its transfer under Settlement Scheme No. 1, in the year 1959, under scheme No. Viii and also under residual property scheme.
However, the aforesaid shop was got transferred in the name of Umar Draz (minor) without possession through one Nawab All son of Mian Muhammad Din vide order dated 2.6.1960 issued by the Deputy Settlement Commissioner. Later on aforesaid Nawab A.I got its rights and interests from Umar Draz in his favour through agreement of association on 13.2.1968. Muhammad Hafeez and Allah Ditta filed separate applications before the Settlement Commissioner for taking up the case under suo motu revision for cancellation of the transfer in favour of Umar Draz. The Settlement Commissioner directed the Deputy Settlement Commissioner concerned to conduct a thorough inquiry regarding the allegations contained in the applications. The matter was investigated by the Deputy Settlement Commissioner but the inquiry was not yet finalized. Meanwhile, the Chief Settlement Commissioner directed the Settlement Commissioner to take up the case of shop No. 8/360-F under suo mow revision. Consequently Settlement Commissioner, Rawalpindi Division, Camp at Gujra after hearing the parties concerned cancelled the transfer made in favour of Umar Draz and Nawab A.I and adjudging the same to be forged and fabricated directed for registration of a criminal case vide his order dated 1.7.71, copy whereof is attached as Annexure-A with this petition. Shop No. 8/369-E was auctioned on 27.10.1970 and purchased by one Muhammad Yousaf respondent No. 1 (who also died during pendency of the writ petition) for a sum of Rs. 4,000/-. The auction purchaser cleared all the dues and on 31.10.1970 filed an application before the Deputy Settlement Commissioner for confirmation of the auction of shop No. 8/369/E. Subsequently he surrendered his entire rights and ownership of aforesaid shop in favour of Rasheed Mehmood, respondent No. 2, vide agreement of association dated 11.1.1974 which was approved by the Deputy Settlement Commissioner on 14.1.1974 and consequently Transfer Order No. 42727, dated 14.1.1974 was issued in favour of Rasheed Mehmood of shop No. 8/369-E.
3. It is averred that Rasheed Mehmood through his father Nawab A.I, tampered with the figures 8/369-E and converted them into 8/369-F in the T.O. Dated 14.1.1974. The petitioner after gaining knowledge of the aforesaid forgery, lodged a complaint with the Chief Settlement Commissioner who called for report from the Deputy Settlement Commissioner, Gujrat. The D.S.C. Conducted a thorough enquiry and reported on 8.12.1979 that the word "E" after tampering with has been converted into word "F". The Additional Settlement Commissioner on 31.3.1980 informed the petitioner that T.O. Stood issued and property has gone out of the compensation pool, therefore, settlement organization has got no jurisdiction to examine the question of tampering. It was further observed by him in Annexure-G that the number of the shop shown in the auction list as 8/369-E is a printing mistake and the property in fact bears No. 8/369-F. The petitioner has been filing various applications to Settlement Authorities against issuances of the T.O. And his last application was filed on 16.11.1984 whereupon the Member Board of Revenue passed his Order dated 10.12.1984 and returned the same for its presentation to the ADC (0), Gujrat who ultimately dismissed it vide his order .Dated 16.2.1987, copy of which is appended as Annexure-J, holding that mentioning of property No. 8/369-E instead of 8/369-F was a printing mistake and the issue already stood thoroughly examined by the learned Civil Judge as well as learned Additional District Judge on the suit filed by Abdul Qadir brother of Muhammad Hafeez, petitioner, and both the Courts came to the conclusion that wrong description of property was due to clerical mistake. The property auctioned was in fact bearing No. 8/369-F and there was no tampering as alleged by the petitioner.
4. Learned counsel for the petitioner contends that the documents attached with the file clearly show that the property auctioned by the Settlement Department was No. 8/369-E and not 8/369-F.
He has referred to challan, depositing its price and other documents and claimed that the T.O. Has been tampered with. According to him the property bearing No. 8/369-F is still available, therefore, petitioner is entitled to its transfer. He has argued that the orders of the Chief Settlement Commissioner as well as Additional Deputy Commissioner, Gujrat are without lawful authority and consequently of no legal effect.
5. No one has appeared on behalf of L.Rs. Of respondent No. 1 inspite of notice. They are, therefore, proceeded ex parte.
6. Ch. Arshad Mehmood, Advocate, learned counsel for respondent No. 2, submits that Settlement Authorities are not competent to look into application of the petitioner for correction of entry in the Transfer Order, after repeal of the settlement laws through Act XIV of 1975. He further submits that it was merely a printing mistake that word "E" was mentioned in the bid list instead of word "F". The Settlement Authorities, through Annexure-G, filed by the petitioner himself, indicates that on account of printing mistake the number of shop was shown as 8/369-E instead of 8/369-F in the auction list. Learned counsel lastly argued that Abdul Qadir, brother of Muhammad Hafeez, petitioner, also filed civil suit for the same relief raising similar pleas which was decided after framing of issues and recording of evidence of the parties and it was held that the property auctioned by the Settlement Department in favour of predecessor in-interest of respondent No. 2 was bearing No. 8/369-F and not 8/369-E. The Additional Deputy Commissioner (General), Gujrat has rightly observed that the matter having been thoroughly thrashed by the learned Civil Judge as well as learned Addl. District Judge, needs no further inquiry. The aforesaid findings cannot be disturbed in the Constitutional jurisdiction.
7. Arguments heard and record perused.
8. After repeal of the settlement laws through Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), the Settlement Authorities have no jurisdiction to entertain any application for correction of any Transfer Order after 30th June, 1974 except in the cases saved by sub-section (2) of Section 2 of the Repealing Act i.e. Cases pending on the aforesaid date or remanded by the High Court and the Supreme Court. Admittedly the petitioner submitted his first application somewhere in the year 1979-80 for correction of the T.O. The Settlement Department at various stages had examined the complaint of the petitioner. Vide order dated 18.12.1979, it was observed by the D.S.C. Gujrat (in Annexure-F) that judgment of the learned Settlement Commissioner, Rawalpindi, dated 1.7.1971, in respect of the disputed shop is not available on the file.
He further observed that from perusal of the T.O. It appears that the word "F" has been overwritten on the word "E" but he refused to give any finding when it was done so and under what circumstances on account of the suit having been filed by Abdul Qadir, real brother of Muhammad Hafeez, petitioner, and submitted his report to the Settlement Commissioner (Urban). The Additional Settlement Commissioner (Urban) Punjab, Lahore, through Annexure-G, conveyed the Order of the Chief Settlement Commissioner to Muhammad Hafeez, petitioner, which is to the following effect:- "The Member Board of Revenue (S&R) has been pleased to observe that shop No. 8/369-F was rightly disposed of in favour of Muhammad Yousaf showing correct name of the occupant and reserve price. The number shown in the auction list as 8/369-E is merely a printing mistake.
Transfer order has been issued and the property has gone out of the compensation pool. Moreover, the matter is pending in the Civil Court, thus the Settlement Department has become functus officio with no jurisdiction to interfere in the matter. You are required to please pursue your case where it is pending instead of filing miscellaneous application in this Organization."
9. The aforesaid findings of the Chief Settlement Commissioner coupled with the decision of the Civil Court as well as learned Additional District Judge, the same issue cannot be examined in writ jurisdiction. The Chief Settlement Commissioner who examined the entire relevant record and reports of the subordinate officers, conclusively held that misdescription of the property was on account of printing mistake. In the civil suit filed by Abdul Qadir, brother of Muhammad Hafeez, petitioner, learned Civil Judge framed issues, recorded evidence of the parties and thereafter dismissed the same holding that the auction made in favour of predecessor-in-interest of respondent No. 2 and its transfer to him is not result of any tampering.
It is conceded by learned counsel for the petitioner that the judgment and decree of the learned Addl. District Judge dated 6.11.1983 has not been further challenged and has attained finality between the parties. It is also evident that Abdul Qadir, brother of Muhammad Hafeez, petitioner, was in occupation of the suit property and application for ejectment was tiled against him by Rasheed Mehmood respondent No. 2. He made a statement before the Rent Controller on 29.11.1985 that he has paid the entire rent to the landlord and requested for one year time to vacate the shop with a clear undertaking that he will go on paying the monthly rent at the rate of 325/- regularly.
On compromise between the parties, one year time was given to him vide order dated 29.11.1983 copy of the statement and order is attached as R/3 with the written reply. The possession of the shop has been taken over by respondent No. 2. The petitioner remained dissatisfied and has been making application. The Chief Settlement Commissioner or any authority subordinate to him, has no jurisdiction to set aside or redetermine the status of the property which has gone out of compensation pool after 31st July, 1974 in view of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). Reference in this behalf may be made to Muhammad Siddique Vs. Mst.
Hawabai and 5 others (1986 CLC 54), Haji Habib Vs. Haji Muhammad and another (1981 CLC 543), Noor Begum Vs. Mahmood Ahmed Khan and others (1982 CI:C 2500), Sher Afzal Khan and others Vs. Haji Razi Abdullah and others (1984 SCMR 228), Headmaster Muslim High School No. 1, Rawalpindi Vs. Mst. Asghart Khanam and 2 others (1984 SCMR 332), Muhammad Younus and 2 others Vs. Muhammad Younus Khan etc. (1981 SCMR 899), Raja Hassan Akhtar and others Vs. Akbar Khan and others (1981 SCMR 503), Mst. Lqbal Siddiqui Vs. Assistant Settlement Commissioner (Urban) and others (PLD 1984 Lahore 291) and Mst. Asghari Khanam Vs. Maj. Lqbal Cheema and 3 others (PLD 1982 Lahore 569).
10. The petitioner, at the most, could go to Civil Court for redressal of his grievance and his brother having failed in the Civil Court as well as before the learned Additional District Judge, there is hardly any material to reagitate the issue of tampering with the T.O. The finding of fact given by the Settlement Department, the Civil Court and the learned Additional District Judge are based on proper appraisal of evidence on record which cannot be interfered with in Constitutional jurisdiction. The petitioner has not been able to show any illegality in issuance of T.O. In favour of respondent No. 2.
11. In the light of judgment referred to above, the Chief Settlement Commissioner as well as Additional Deputy Commissioner (G), Gujrat were justified in refusing to interfere in the T.O. Issued in favour of respondent No. 2 for want of jurisdiction and so also on the fact which merely proceeded due to printing mistake. This petition is without any merit and is hereby dismissed with no order as to costs.