The dispute in this petition and Writ Petition No,381-R of 1986 relates to Regal Cinema, Faisalabad. It was initially allotted in favour of 11 persons. On commencement of the settlement operation, its transfer was applied for by the petitioner, Hafiz Azeem Bakhsh and one Ahmed Saeed by submitting requisite forms.The Settlement Commissioner (industries) on 6-1-196G soughi the approval of its transfer in favour of Hafiz Azeem Bakhsh from the Chief Settlement Commissioner which was accorded by the later on 7-1-1960. On 12-5-1964, the Additional Settlement Commissioner (Industries) determined the assessment of the Cinema as Rs,1,28,355 with a direztion that the same be communicated to the transferees for payment. It appears that the petitioner and his brothers had taken up the matter with the Central Government for the transfer of the Cinema as a result whereof a report was submitted by the Settlement Commissioner whereafter, the Central Government on 13-12-1971, ordered its transfer in the ratio of 50 : 50 i.e Umar Draz Khan and his brothers and Mr. Azeem Bakhsh. The implementation of the said order was in process when the legal representatives of Hafiz Azeem Bakhsh filed Writ Petition No,999-R of 1973 in which the parties arrived at a compromise and the petition was disposed of in view thereof vide judgment dated 7-6-1986. As per the compromise arrangement between the parties Umar Draz Khan, petitioner herein, had to retain 47% share in the Cinema and the remaining 53% had to remain with the heirs of Hafiz Azeem Bakhsh. The Settlement Department was accordingly directed to pass a fresh order of transfer in accordance with the terms of the compromise. Since the implementation of the order was delayed, Writ Petition No,3237 of 1986 was filed before this Court. Eventually, an order dated 25-9-1986 was passed by the Settlement Commissioner (Industries), Punjab, Lahore who ordered the issuance of transfer order " in respect of the Regal Cinema in favour of the parties to the Writ Petition No, 999-R of 1973 i.e 53% share to the heirs of Hafiz Azeem Bakhsh and 47% share to the legal heirs of Umar Draz Khan". As to the payment of the price it was ordered that the legal heirs of Hafiz Azeem Bakhsh would "make payment to the extent of their share out of Rs,1,28,355 alongwith the settlement fees etc. being the original allottee, in cash." However, he took the view that "the legal heirs of Umar Draz Khan will now be treated as fresh transferee of the Regal Cinema to the extent of 47% shares. They will be charged the transfer price to the extent of their share at the prevailing market value of the Cinema." This latter part of the order has been challenged by the legal heirs of Umar Draz Khan that they could not be given different treatment than the heirs of Hafiz Azeem Bakhsh.
2. The connected petition i.e Writ Petition No, 381-R of 1986 has been filed by the legal heirs of Mubarak Ali Khan impleading therein the legal heirs of Umar Draz Khan,' Ijaz Ali Khan and Rafi-ud- Din Khan, brothers inter se, that Umar Draz Khan had been acting for and on behalf of his brothers and the transfer was in favour of all brothers. Their grievance is that the Settlement Commissioner had to determine their claim and interest alongwith Umar Draz Khan which he has failed to do. Since both the petitions concerned the same property, the parties and the impugned order both have been heard together and are being disposed of together.
3. Mr. S.M Naseem, Advocate the learned counsel for the petitioners in Writ Petition No, 350-R of 1986, contends that the learned Settlement Commissioner has acted illegally in treating the transferees differently in the matter of payment of price. It is contended that the approach of the respondents was wholly erroneous and based on misconception as to the facts and the law on the subject.
4. Rana Muhammad Sarwar, Advocate, the learned counsel for the impleaded respondents who claim to be the successors of Hafiz Azeem Bakhsh, supports the order passed by the Settlement Commissioner and contends that the petitioners have rightly been treated as fresh transferees.
5. There is no doubt that on 13-12-1971 the Central Government had ordered the transfer of Cinema in the ratio of 50:50 between Umar Draz Khan and his brothers and Hafiz Azeem Bakhsh. The ratio of the shares, however, through the compromise arrangement between the parties was altered as a result whereof, Hafiz Azeem Baldish had 53% share and the other party 47%. However, while implementing the above orders, the learned Settlement Commissioner proceeded to treat the legal heirs of Umar Draz Khan as fresh transferees on an erroneous view of the matter that their predecessor was not an allottee of this Cinema. Such a view was neither warranted by the facts nor the law inasmuch as the 'name of Umar Draz Khan figured at serial No,6 of the allotment order dated 18-5-1954 and was allottee alongwith the others. The conclusion of the learned Settlement Commissioner was thus based on an assumption which was contrary to the material on the record. He seems to have also been influenced by the filing of Writ Petition No,999-R of 1973 against the order of the Central Government dated 13-12-1971 and the stay order passed by this Court. He, however, lost sight of the fact that the writ petition had not been filed by Umar Draz Khan but had been filed by the heirs of Hafiz Azeem Bakhsh. Neither the filing nor the issuance of stay order would have prejudiced the rights of the parties which litigation, however, had ended with the compromise. Clearly, therefore, the reasons which prevailed with the learned Settlement Commissioner for treating the petitioner in the matter of payment of transfer price of the Cinema, differently were erroneous and untenable. The order qua them thus is not sustainable and is declared as of no legal effect.
6. Adverting to Writ Petition No, 381R of 1986, suffice it to state and observe that Umar Draz Khan, Mubarak Ali Khan, Ijaz Ali Khan and Rafi'ud-Din Khan were brothers. There are number of applications pleadings, representations and communications which show that Umar Draz Khan had been acting for himself and on behalf of his brothers which culminated into the final order by the Central Government dated 13-12-1971. The operative part of paragraph No,9 of the said order reads as follows:- "Now that the Ministry of Law have confirmed the entitlement of Mr. Umar Daraz Khan and his brothers to the transfer of Regal Cinema Lyallpur againsttheir joint application made for the purpose, the available share may be transferred to them or the Cinema be transferred in the ratio of 50 :50 between them and Mr. Azim Bakhsh, if the latter's claim against which he has sought transfer of the cinema is eventually found to be genuine. In case, the claim of Mr. Azim Bakhsh ultimately turns out to be bogus, the entire cinema be transferred to Mr. Umar Draaz Khan and his brothers who are constantly pursuing their right since 1960." (Portions underlined by me).
There would have been no doubt, ambiguity, or obscurity that the transfer order was joint in favour of all the four brothers. It, however, so happened that the legal heirs of Hafiz Azeem Bald filed Writ Petition No, 999-R of 1973 before this Court in which only Umar Draz Khan was impleaded alongwith the official respondents. In the said petition there was a compromise and the same was disposed of on those terms. The application (Criminal Miscellaneous No .3171 of 1983) of heirs of Mubarak Ali Khan for being impleaded as party was declined that the same was moved at a 'belated stage and that "even otherwise the best claim of legal representatives of Mubarak Ahmad is that Umar Draz was pursuing the case in a representative capacity. Once the representative character is granted to Umar Draz, the applicants cannot claim that Umar Draz cannot enter into a compromise in that capacity. The compromise between legal representatives of Umar,Draz and the legal representatives of Hafiz Azeem Bakhsh, therefore, remains valid. Whether in actual effect Umar Draz was pursuing the matter in his individual capacity or as a representative of himself and his brothers is a matter between Umar Draz and the applicants. In other words, whether the applicants can set up a claim against Umar Draz is a matter between these two and does not fall for determination in the present proceedings. The Miscellaneous Petition No,3171 of 1983 is, therefore, rejected."- It is the grievance of the petitioners 'that the learned Settlement Commissioner has gone wrong in taking the view as if the inter se rights of the brothers had been determined by this Court. It is contended by the learned counsel that their application for being impleaded was dismissed in the context that the matter was being disposed of through compromise and the inter se interest of the brothers was left open which matter was to be determined by the learned Settlement Commissioner seized of the matter who, however, has non-suited them by erroneously relying upon the abovementioned order in Writ Petition No, 999-R of 1973.
7. The basic order of transfer in the present case is of the Central Government dated 13-12-1971, the operative part whereof has been reproduced already, the underlined portions whereof would clearly show that the Cinema was ordered to be transferred to two sets of transferees i.e Umar Draz Khan and his brothers and Hafiz Azeem Bakhsh. The said order was not challenged by Umar Draz Khan or any of his brothers. It was final qua them inter se. Has the same not been challenged by the heirs of Hafiz Azeem Bakhsh, there would have been no such dispute between- the brothers. All the brothers were thus transferees jointly. Since the case was being diposed of on the basis of compromise in which only Umar Draz, Khan had been impleaded, application of the petitioners for impleading and opposing such a compromise was rejected by this Court with a view that the matter of representative character of Umar Draz Khan could not be determined in those proceedings. It was by no means a final determination of the matter nor could it be as the valuable rights of the parties were involved therein. The matter had thus to be attended to by the learned Settlement Commissioner which he failed to determine. It was his duty while ordering the issuance of transfer documents to determine proportionate shares of the brothers out of 47% share of the Cinema. Since it is a question of fact to be determined on the basis of material to be produced by the respective contenders, the matter will have to be-remitted to the Notified Officer having jurisdiction in the matter to determine the same. It is, however, observed and clarified that 53% share of the successors of Hafiz Azeem Bakhsh will remain in tact and only 47% share of the Cinema inter se the brothers and their respective ' extent/ratio will be determined. This petition thus succeeds in these terms.
8. As a result of the above, both these petitions are disposed of in terms indicated above. No order as to costs.