The dispute relates to Evacuee land measuring 2 Kanals comprising Khasra No.2027/2609, Khawait No. 163 Khatooni No. 198 situated in Guru Mannghat, Lahore Cantt. Initially one Latif Chohan occupied this piece of land in 1958 and constructed several shops and service quarters/an are; covering about 10 Marals. Another 10 Marlas was also covered by filling the foundations for construction of servant quarters in this way one Kanal way left as vacant. The petitioner purchased it for a sum of Rs.80,000 from said Latif Chohan and the possession was also handed over to him by way o executing an agreement deed in his favour. After taking over possession o the said premises on 3-8-1976, the petitioner submitted B.S. Form under Settlement Scheme No.VIII Scheme for the Management and Disposal o: available Urban properties, 1979, before the Deputy Administrator (R.P.' seeking transfer of the area in his possession i.e. Two Kanals, including the built up area. The occupants also applied for transfer of the portions in them respective possession. The Deputy Administrator rejected all the form; vide his order, dated 24-3-1981. Revision petition filed by the petitioner was also dismissed by the Administrator (R.P.) vide his order, dated 31-5-1981. This order has been assailed in the present Constitutional petition. This petition was accepted by this Court vide judgment dated 11-8-1993 with the following observations:-- "The upshot of the above discussion is that this writ petition is accepted., The impugned order is declared to be without lawful authority and of no legal- effect. The case shall go back to the Deputy Administrator (R.P.), who shall take necessary steps for transfer of the property to the petitioner after realizing the price and other dues in accordance with law."
2.The judgment rendered on 11-8-1993 was challenged by way of filing C.M. . Applications No.1978 of 1996, 2018 of 1996, 2026 of 1996, 2029 of 1996, 2023 of 1996, 2020 of 1996, 2035 of 1996 and 2032 of 1996 under section 12(2) of the C.P.C. For re-calling the above said judgment. All the above said C.Ms. Were allowed by order dated 28-7-1998. The judgment dated 11-8-1993 passed in Writ Petition No.504-R of 1981 was recalled and the applicants were directed to be impleaded as party to the writ petition. In compliance of the above said order amended writ petition was filed impleading the above said applicants as respondents.
3. Learned counsel for the petitioner Mr. Taqi Ahmad Khan, Advocate contended that the property in dispute was surrendered in favour of the petitioner through agreement dated 3-8-1976 by its occupant Muhammad Latif Chohan and the petitioner occupied the same and stepped into the shoes of the person who came in possession in 1958, therefore, rejection of B. S. Form by Deputy Administrator on the ground that the property was occupied after the target date i.e. 1-1-1976 is totally illegal. It is further contended that the petitioner in his capacity as assignee from Muhammad Latif Chohan was admittedly in possession and was fully entitled for its transfer.
Learned counsel has also referred the statement of Muhammad Latif Chohan recorded by the Deputy Administrator during the course of proceedings that the (sic) and have also executed rent note and had been regularly paying rent to him at this stage respondents are stopped to challenge the title of the petitioner. Learned counsel has also referred to the definition of the word possession as given in clause (i) of Part-I (Chapter-I) of Scheme for the management and disposal of available properties to contend that the petitioner being assignee from the original occupant is very much covered under this definition and his possession is established long before the target date on 1-1-1976. The learned counsel has also drawn my attention to some of the annexure "S, T and U" of the amended writ petition to point out that one of the respondents namely Farid-ud-Din and Afsar-ud---Din in a bail application mentioned in para 3 that they are residing in property No.5-E as tenant which is owned by Muhammad Latif Chohan.
4. Conversely Mr. Abdul Aziz Qureshi, learned counsel for respondents contended that the respondents occupied property in dispute in their own right and built house thereon' and were entitled to its transfer; all of the occupants submitted separate B.S. Forms under Scheme VIII for transfer of plot in their respective possession while the petitioner applied for transfer of whole of the plots 2 Kanals; after rejection of their B.S. Forms by Deputy Administrator vide order, dated 24-3- 1980 revision petitions were filed by the petitioner as well as respondents which were also dismissed by the Administrator (R.P.) on 31-5-1982; that the petitioner has assailed this order through this Constitutional petition while respondents Nos.2 to 10' filed civil suit against rejection of their B.S. Forms; that their suits were dismissed, appeal filed by the respondents was accepted by Additional District Judge vide judgments/decree dated 26-3-1995 and the present petitioner has filed an application under section 12(2), C.P.C. Challenging the above said judgment and decree which is still pending. By referring the above said fact learned counsel contended that the petitioner's B.S. Form was rightly rejected by the Deputy Administrator, therefore, he was not entitled to take benefit under Settlement Scheme.
5. On 6-10-1998 C.M. 11 of 1998 with C.M. 12 of 1998 under Order 1 Rule.10 read with section 151, C.P.C.
Was filed on behalf of Kh.Tanvir Ahmad through Mr. Ghafran Khurshid Imtiazi, Advocate, Rawalpindi for impleading Kh. Tanvir Ahmad, as party. Alongwith this Application C.M. 12 of 1998 was filed for seeking exemption of production of certified copies. Notice was issued in C. M. 11 of 1998 while C. M.
12 of 19981 allowed, subject to all just exceptions. The above said C.M. i.e. C.M.11 of 1998 was fixed on 26-2-1999 as no one was present on behalf of applicant, office was directed to issue notice to counsel who was an outside counsel, and the case was ordered to be re-listed in 4th week of March, 1999. The case was again fixed on 22-3-1999. The learned counsel for the applicant was not present on that date It was pointed out by the learned counsel for the petitioner that the alleged power of attorney submitted by Kh. Tanvir Ahmad did not specifically authorize Mr Ghafran Khurshid Imtiazi his general attorney, for making such application and after perusing the general power of attorney, this C.M. Was dismissed as not competent.
6. Aggrieved by the above said order Mr. Ghafran Khurshid Imtiazi, Advocate filed C.M. No. 536 of 1999 for recalling the order, dated 22-3-1999 which was fixed on 14-5-1999. Notice was issued to the other parties which was accepted by Mr. Taqi Ahmad Khan on behalf of petitioner and Mr Abdul Aziz Qureshi, Advocate on behalf of respondents. This C.M. Is also being taken up alongwith the main case today.
7. I have heard the learned counsel for the parties at some length and have also perused the record. The objection raised by the learned counsel for the petitioner as well as learned counsel for the respondents Nos.2 to 10 that Kh. Tanvir Ahmad, is not an allottee of this Khasra number and he might have obtained PTD with regard to some other property and he can apply for demarcation before the same authorities concerned could only be decided after taking appropriate proceedings by the Settlement Authorities.
8. The parties have been litigating since long, C.M. 11 of 1998 filed by Mr. Ghafran Khrushid Imtiazi which was decided by order, dated 22-3-1999, the order having been passed in the absence of the learned counsel, who is an outside counsel, in the interest of justice by accepting C. M. 536 of 1999 the above said order is recalled and the C. M. 11 of 1998 is allowed, subject to all just exceptions. Kh.
Tanvir Ahmad, Advocate is also allowed to be arrayed as respondent No. 11.
9. At this stage it is difficult to dislodge the occupants from the portion in their respective possession. As held by Hon'ble Supreme Court of Pakistan in Mst. Shah Jehan Begum v. Mst. Shabbir Fatima and another (PLD 1991 SC 614)".
"It is admitted position that the appellant has only a some part of house in her possession while the respondent has much part thereof. Therefore, while exercising the jurisdiction in the nature of writ as is available to the High Court, this Court would also try whenever possible, in the settlement cases, to adjust and , accommodate as many displaced persons as possible. "
10. This view was further affirmed in Mst. Shahzad Begum and Kamal Ahmad and 18 others (PLD 1991 SC 617) with the following observations:----- "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 results 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. Hence there is no justification for interference. This appeal fails and dismissed. "
11. The upshot of the above discussion is that this writ petition is allowed, the impugned order is declared as without lawful authority and of no legal effect. The case is remanded to the learned Chief Settlement Commissioner/M.B.R., who shall decide the same afresh in the light of the above observations and the dictum laid down by the Hon'ble Supreme Court of Pakistan in the above cases, after affording opportunity of hearing to the parties concerned. Parties however, shall bear their own costs.