' Order, dated 11-12-1986 of the Administrator (R.P.)/Additional Commissioner, Lahore Division Lahore, whereby, the revision petition, filed by the petitioners, was dismissed, has been challenged through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The dispute concerns with Property No,SE-IV-16-S-14, Lajpat Street, Nicholson Road, Qila Gujjar Singh, Lahore which was an evacuee property and was burnt partly during the disturbances of 1947. As per survey list, it was occupied by Abdul Aziz, Zahoor Ahmed son of M. Hidayatullah, Sheikh Abdul Hameed, Siraj Din and Abdul Ghaffar. It may be mentioned here that Abdul Aziz and Sheikh Abdul Hameed were brothers. With the commencement of the settlement operation Hidayatullah predecessor-in-interest of the petitioners, submitted C.H. Form for the transfer of the property. On 28-12-1959, Zaheerud Din, Settlement Inspector, after inspection of the spot, submitted report that Hidayatullah, a refugee/claimant was the only person who had submitted C.H. Form. Finding the property indivisible he recommended the transfer to him. It was on 6-1-1960 that the Deputy Settlement Commissioner, Lahore ordered the transfer of the property to Hidayatullah, as a consequence of which P.T.O. Dated 8-1-1960 was issued. Thereafter, P.T. D. Dated 20-4-1963 was also issued. Abdul Aziz and Abdul Hameed challenged the order of transfer through separate appeals which were dismissed by the learned Additional Settlement Commissioner (Judicial)
Lahore on 13-6-1960. Abdul Aziz tiled a revision petition thereagainst which was dismissed by the Settlement and Rehabilitation Commissioner, Lahore on 13-6-1963. Writ Petition No,1700/R of 1963 was filed by him against the abovementioned orders which was dismissed by this Court on 11-6- 1964. L.P.A. No,368 of 1964 filed by him met with the same fate and was dismissed in limine on 15-9- 1964. With this order litigation by Abdul Aziz qua the transfer in favour of Hidayatullah concluded and came to an end.
3. Abdul Hameed had also challenged the order of the Additional Settlement Commissioner, dated 13-6-1960 whereby his appeal had been dismissed by filing revision petition. His revision petition was dismissed by the Settlement and Rehabilitation Commissioner on 24-10-1960. He filed a second revision petition which was dismissed on 29-7-1961. Writ Petition No,272/R of 1964 was then filed by him which was dismissed in limine on 12-3-1964. He filed L.P.A. No,134 of 1964 which was dismissed on 15-9-1964. These orders were challenged by him before the Supreme Court of Pakistan through C.P.S.L.A. No,328 of 1964 which was dismissed on 3-12-1964. The contest between these two parties namely Abdul Hameed and Hidayatullah in respect of the transfer of the property concluded accordingly.
4. Hidayatullah, the transferee of the house, had in the meantime taken out proceedings for ejectment against Siraj Din and other occupants after issuance of requisite notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The ejectment petition was, however, dismissed on 26-4-1961 for the reason that Hidayatullah had demanded higher rate of rent. However, on an appeal, filed by Hidayatullah the learned District Judge remanded the matter to the Rent Controller by accepting his appeal vide order, dated 22-7-1961. On remand, the ejectment petition was accepted by the learned Rent Controller on 20-11-1963. Siraj Din challenged the said order in appeal which was dismissed by a learned Additional District Judge, Lahore on 5- 2-1964. He filed S.A.O. No, 104 of 1964 which was dismissed on 21-2-1967. While the ejectment proceedings were going on against Siraj Din, he filed a miscellaneous application before the Additional Settlement and Rehabilitation Commissioner, Lahore that he had filed an appeal against the order dated 6-1-1960 (whereby the property had been transferred by Deputy Settlement Commissioner in favour of Hidayatullah) which had remained undecided. However, the learned Additional Settlement and Rehabilitation Commissioner (Judi.) Lahore rejected the said application on 10-1-1966 that no such appeal was pending for disposal. A revision petition was filed by Siraj Din which was accepted by the Settlement Commissioner Lahore on 27-5-1967 by observing that order of transfer passed by the Deputy Settlement Commissioner merits to be suo motu revised and set aside with a direction for fresh disposal of the C.H. Form. This order was challenged by Hidayatullah by filing Writ Petition No,510/R of 1967 which was accepted by this Court on 19-11-1973. Since the hearing of the said petition had taken place ex parte, an application (C.M. No,3 of 1974) for setting aside of the said order was tiled which was dismissed by the learned Single Judge on 23-4-1974, yet another application was filed by him which was also dismissed on 14-5-1974. Siraj Din then filed C.P.S.L.A. No,587 of 1974 which was dismissed by their Lordships on 5-2-1976. With the conclusion of the above proceedings the controversy ought to have been set at rest, however, it was not so and Siraj Din filed a suit for declaration challenging the transfer in favour of Hidayatullah and the issuance of P.T.D. To him. Alongwith the suit he had filed an application for the grant of temporary injunction which application was granted by the Trial Court on 11-10-1976 that "till the disposal of the suit the petitioner may not be ejected in any manner from the portion of the property". Hidayatullah challenged this order of the learned Trial Court by filing C.R. No,1129 of 1979 which was accepted by this Court on 12-12-1979. Eventually, the said suit was dismissed by the Trial Court on 22-12-1982.
This limb of the litigation also concluded.
5. Hidayatullah had also taken out ejectment proceedings against Abdul Hameed but the ejectment petition was dismissed by the learned Rent Controller on 26-4-1961, whereagainst, the appeal filed by Hidayatullah was dismissed on 4-11-1961 that the default in payment of rent had not been proved. Hidayatullah took out the fresh ejectment proceedings against him in the year, 1974 which ejectment petition was accepted by the Rent Controller on 2-10-1974. Leaving aside some other proceedings, it may be noted that the successors of Abdul Hameed had filed Writ Petition No, 377 of 1982 against the order, dated 13-12-1981 of the learned Rent Controller, Lahore which was dismissed for non-prosecution on 28-10-1984. The said petition was, however, restored vide order dated 16-3-1985, whereafter, writ petition was dismissed on its merits on 26-3-1985. It was thereafter on 3-6-1985 that an order was passed by the learned Rent Controller striking of the defence. They filed an appeal thereagainst which was dismissed by the Appellate Court on 25-7- 1985. Writ Petition No,3544 of 1985 was filed by them which was dismissed on 14-12-1985. It appears that an application was moved in the said writ petition by the parties that they had settled the matter through compromise that the petitioner would vacate the premises on or before 5-4-1986.
It is stated that the possession was accordingly delivered to the petitioners the successors-in- interest of Hidayatullah.
6. Late Rahat Amin-ud-Din, respondent No,3 (son-in-law of Sh. Abdul Hameed) had filed a suit for declaration and permanent injunction on 16-2-1976 that he was not liable to eviction from five rooms of the said property which were claimed by him in his possession. The suit was eventually dismissed by the Trial Court on 24-3-1976 rejecting the plaint under Order VII, Rule 11 of C.P.C. On 14- 2-1976, an application was filed by Rahat Amin-ud-Din before the Deputy Settlement Commissioner that he was in occupation of an independent portion of the disputed property consisting of five rooms for which he claimed to have submitted Form under Settlement Scheme No,VIII. The Deputy Settlement Commissioner directed the Settlement Inspector to submit report.
On 19-2-1976, the Settlement Inspector reported that the whole house stands transferred to Hidayatullah and P.T.D. Issued to him. Form may be rejected. In view of this the Deputy Settlement Commissioner rejected the Form. This order was not challenged by Rahat Amin-ud-Din any further despite having noted the said order by him on 25-2-1976. Another Form, dated 31-10-1977 is said to have been filed by him. An application thereafter was submitted by him to the Deputy Settlement Commissioner with the prayer that his Form No, 520, dated 31-10-1977 under the Residual Property Scheme be disposed of. On this the Deputy Settlement Commissioner obtained the report of Settlement Inspector and thereafter rejected the Form on 11-4-1979 as the property already stood transferred to Hidayatullah for which P.T.D. Had already been issued. This order again was not challenged by him.
7. It was on 20-3-1984 when he again made an application to Deputy Administrator (R.P.) for the disposal of his Form No,520, dated 31-10-1977 (which had already been rejected by D.S.C., dated 11- 4-1979). It is now that the Settlement Inspector reported that he was in possession of an independent portion of the property. On this the Deputy Administrator (R.P.) Centre Farid Court House, Lahore passed order, dated 10-9-1984 that the property in dispute consisted of 13 rooms, out of which, 8 rooms have been transferred to Hidayatullah and remaining five rooms and one staircase were in occupation of Rahat Amin-ud-Din for which he applied under the Residual Property Scheme and ordered its transfer to him. This order was challenged by the petitioners, successors of Hidayatullah, by filing a revision petition before the Administrator of the Residual Property who by order, dated 11-12-1986 dismissed their revision petition upholding the order of the Deputy Administrator of Residual Property. This petition has been filed against the abovementioned orders.
8. Learned counsel for the petitioners contends that full house (Property No,SE-IVl6-S-14, Lajpat Street, Nicholson Road, Qila Gujjar Singh, Lahore) was transferred to Hidayatullah, predecessor-in- interest of the petitioners and P.T.D. Issued for the same and the transfer of the said property having been maintained by the Courts in successive rounds of litigation, there was nothing available for which late Rahat Amin-ud-Din, respondent No,3 could have applied. It is contended that twice his forms were rejected which rejection order attained finality as he did not challenge those orders, there was no power or jurisdiction available with the Deputy Administrator (R. P.) to order transfer in his favour on 10-9-1984. It is further contended that besides that the said order was passed by the Deputy Administrator (R.P.) without any notice or hearing the petitioners, the same was without jurisdiction having been passed after the repeal of the laws when there were no proceedings pending at the time of repeal nor the property was available for transfer. It is further contended that late Rahat Amin-ud-Din was son-in-law of Sh. Abdul Hameed, a contestant of the property, who had lost his case and he also acted as attorney for Siraj Din another contentment, and was fully aware of the litigation concerning the property that the same had been transferred to late Hidayatullah and P.T.D. Issued to him.. The order of the Deputy Administrator (R.P.) and that of the Administrator are thus, assailed that they have acted without lawful authority in the matter.
9. Learned counsel for the successors- in-interest of late Rahat Amin-ud-Din, respondent No,3, contends that the property consisted of 13 rooms and only 8 rooms had been transferred to late Hidayatullah, the rest of 5 rooms were available for transfer which were rightly transferred by the Deputy Administrator (R.P.) to Rahat Amin-ud-Din. It is contended that the finding as to the availability of 5 rooms and staircase for transfer cannot be interfered with by this Court in writ jurisdiction as the equity would also lean in favour of the respondents. It is further contended that even if it was one property the question of its divisibility cannot be gone into by this Court.
According to him, the transfer order passed by the Deputy Administrator (R.P.) as maintained by the Administrator is legal and does not warrant interference.
10. Through C.M. No,1 of 1997 Asad Ashraf and Afzal Ashraf had sought to be impleaded as party to the writ petition. They were impleaded so but are not represented despite the fact that the name of their learned counsel duly appears in the cause list. The case has thus, been heard ex parte qua them.
11. The resume of the factual background of the litigation going on between the parties, mentioned above, qua the Property No,SE-IV-16-S-146, Lajpat Street Nicholson Road, Qila Gujjar Singh, Lahore would show that (a) late Abdul Aziz failed in his claim with the dismissal of his L.P.A. No,368 of 1964 on 15-9-1964 which attained finality as it was not challenged any further. (b) Late Abdul Hameed, brother of late Abdul Aziz (father-in-law of late Rahat Amin-ud-Din, respondent No,3) lost his contest with the dismissal of C.P.S.L.A. No,328 of 1964 on 3-12-1964. (c) Siraj Din, the other contestant, lost his case upto the Supreme Court of Pakistan when C.P.S.L.A. No,587 of 1974 was dismissed by their Lordships. A declaratory suit, filed by Siraj Din was also dismissed on 22-12-1982.
(d) So far Rahat Amin-ud-Din was concerned, his suit was dismissed on 24-3-1976 by the Trial Court which order was not challenged any further. His Form was rejected by the Deputy Settlement Commissioner on 19-2-1976. This was not challenged by him, his second attempt on the settlement side also failed when his Form No,520, dated 31-10-1977 was rejected by the Deputy Administrator (R.P.) on 11-4-1979, even this order was not challenged by him.
' Quite strangely the same Form No,520 which had been rejected on 11-4-1979 was sought to be resuscitated by him when he made an application on 20-3-1984 to the Deputy Administrator (R.P.) as a result of which, for the first time, he was ordered to be transferred 5 rooms and staircase. It was long after the issuance of P.T.D. In favour of late Hidayatullah and the repeal of the evacuee laws that the Deputy Administrator (R.P.) endeavoured to erode the finality of the abovementioned orders and the transfer of the property in favour of late Hidayatullah. His approach to the matter was oblivious of the long drawn litigation and contest between the various contestants and the tenor of the P.T.D. Which described the property transferred as "Full House". It was transfer of the full house which had been maintained by the Settlement Authorities, the High Court and the Honourable Supreme Court in the litigation, mentioned above. The full house having been transferred in favour of late Hidayatullah and P.T.D. Issued to him, there was nothing available to be dealt with by the Deputy Administrator (R.P.) after the repeal of Evacuee Laws by the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 nor any Form could be entertained or transfer made in pursuance thereof in the stated circumstances. It is pertinent to be noted here that the Deputy Administrator (R.P.) had not issued any notice to the petitioners nor was even conscious of the fact that previously as well-twice the respondent had failed in securing the transfer and his forms had been rejected. In view of the judicial precedents and Deputy Administrator (R.P.) could not have entertained the application of respondent No,3 nor made transfer order in his favour. In Ali Muhammad v. Haji Hussain and 2 others PLD 1975 Kar. 971 which was a case wherein the matter of transfer was sought to be reopened after the issuance of P.T.D., it was observed by the Division Bench as follows:-- "Haji Hussain merely made a miscellaneous a plication for demarcation and as held by their Lordships of the Supreme Court in S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others PLD 1971 SC 669, such procedure is not available to increase the area, or add to, the property transferred to a person under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by cancelling transfer of a property to another person. It may here be added that the view we have taken in this judgment, that no power was available to the Additional Settlement Commissioner or any other Settlement Authority to deal with the property transferred to the appellant, has also been adopted in a Karachi decision, Mst. Hajiani Fatima Bai and 6 others v. Ibrahim and 13 others PLD 1972 Kar.
610."
' In Bilqis Begum and others v. Fazal Muhammad and others 1987 SCM R 1441, a part of the composite building was transferred to one Jamshaid Ali Khan (predecessor-ininterest of the petitioners) and other to Naik Muhammad (predecessor-in-interest of the respondents), where after P.T.D. Was issued to Naik Muhammad. Rao Jamshaid Ali Khan challenged the entitlement of Naik Muhammad in which he successed before the Settlement Authority and P.T.D. Issued to Naik Muhammad was cancelled. On the writ petition filed by successors of Naik Muhammad, the said order of the Department was declared as illegal that after the repeal of the law, there was no jurisdiction with the Department to proceed in the matter and that the saving provision of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 only covered the cases pending immediately before the repeal of the law i.e, 1-7-1974. It was found that the application in the case was made on 20-3-1976, the same could not be entertained by the Department. The Honourable Supreme Court upheld the order of the High Court whereby the order of the Department was set aside. In Khawaja Bashir Ahmad v. The Additional Settlement Commissioner, Rawalpindi and others 1991 SCM R 1604, question as to the effect of the issuance of the P.T.D. Before the repeal of Laws and assumption of jurisdiction by the departmental functionaries after the repeal of the Laws had arisen, it was observed by their Lordships that the P.T.D. Had been issued to the transferee in the year, 1964 but the matter was reopened on an application in the year, 1975. It was observed at page 1607 as follows:-- "On 28-1-1975, the present case was neither pending before any of the Settlement Authorities nor remanded by the High Court or the Supreme Court, therefore, the Settlement Commissioner (notified officer) had no jurisdiction, whatsoever to reopen the transaction which was past and closed."
' The legal position thus, is fairly settled that after the issuance of P.T.D. And when the matter of transfer attains finality, the same cannot be reopened to accommodate another which may denude the rights of the transferee. The contention of the learned counsel for the petitioners thus, has lot of substance. That a property which had already been transferred to the predecessor-in- interest of the petitioners as a "Full House", a portion of the same could not be sliced away and transferred to respondent No,3.
12. The observation made by the Deputy Administrator (R.P.) in his order, dated 10-9-1984 that late Rahat Amin-ud-Din was in possession since independence, is belied by survey list which did not show him as one of the occupants although the other occupants of the property were mentioned therein and also by the fact that he never lodged his claim for transfer or agitated the transfer in favour of Hidayatullah except the forms which were rejected in 1976 and 1979. He cannot be 'heard to say that he was not aware of the whole gamut of litigation regarding the transfer of property which ended against late Sh. Abdul Hameed (his father-in-law, one of the contestants) but also had been acting as attorney for Siraj Din, another contestant. The factum of his being attorney of Siraj Din is undeniable as the same finds mention in the order of Honourable Supreme Court of Pakistan in C.P.S.L.A. No,587 of 1974 which had been filed by Siraj Din and was dismissed by their Lordships. The contention of the learned counsel for the successors-ininterest of respondent No:3 that equitable approach should be adopted in the matter, loses its significance in view of the factual and legal position obtaining in the matter. Likewise, the contention that in writ jurisdiction the orders passed by the Deputy Administrator (R.P.) cannot be interfered with, has no merits inasmuch as it is established on record that the predecessor-in-interest of the petitioners had been transferred the whole of the property and P.T.D. Was issued for the same and also that such a transfer had attained finality with the conclusion of ' litigation between the contestants. The form of respondent No,3 had twice been rejected which orders also attained finality and the Deputy Administrator (R.P.) could not have by ignoring all these facts ordered the transfer of a part of the same property in favour of respondent No,3. In Pehlwan Muhammad Nazir v. Abdul Hamid and others 1988 SCM R 1153 the contention that the High Court could not interfere with the findings of the Settlement Authorities in its Constitutional jurisdiction, was repelled observing that "we do not agree with the learned counsel that, in all cases, the High Court is prohibited from noticing obvious and/or undeniable facts and cannot draw necessary inferences from them; particularly, in the Rehabilitation Settlement cases under the laws relating to displaced persons". The whole object of giving the resume of the litigation in respect of the transfer of the property is as to how a transferee had to face successive litigation at different fronts and forum but by ignoring the hard facts established on record, the orders impugned were passed by respondents Nos.1 and 2. The Deputy Administrator (Residual Property) clearly acted without jurisdiction in the matter and the order of the Administrator dismissing the revision petition, filed by the petitioners, also does not stand on better footing than without lawful authority.
' In view of the above, order of the Deputy Administrator (R. P.)/respondent No,1 and that of the Administrator/ respondent No,2 are declared to be illegal, without jurisdiction and of no legal effect.
This petition is accepted accordingly. No order as to costs.