' The petitioners in this petition and in Writ Petition No,179-R of 1995 are transferees of National Steel Re-Rolling Mills whereas Haji Muhammad Yar, respondent No,2, is transferee of Ganga Ice Factory.
There is area measuring 5 Kanals, I Marla and 185 sq.Ft. Both sets of transferees claim the same to be part and parcel of their transferred properties. The learned Settlement Commissioner vide order, dated 5-7-1995 has found and held that the same is part of Ganga Ice Factory. This order has been challenged through these petitions by the transferees )f National Steel Re-Rolling Mills. Briefly stated the dispute arose as ender.
2. The transfer of National Steel Re-Rolling Mills in favor of the petitioners is not in dispute likewise the auction of Ganga Ice Factory on 20-5-1960 and its transfer in favor of Haji Muhammad Yar, respondent, is also not in dispute. After the verification of the compensation books and adjustment/payment of price, T.O. (Transfer Order) No,163 dated 30-3-1981 was issued in favor of Haji Muhammad Yar. Schedule-A thereof gives the description of the property i,e, Ganga Ice Factory, 114 Gulberg Road, Lahore area whereof is mentioned as 24 Kanals and 15 Marlas. The issuance of Transfer Order was not challenged by the petitioners. One Abdul Aziz an occupant, however, agitated the matter asking for the transfer of site in his possession. In pursuance whereof, some proceedings ensued. The case of the petitioners, however, is that in office noting dated 13-8- 1983, the Settlement Commissioner had with reference to a report of Inspector Industries observed that there was tampering with the record as to the area of the factory making 14 Kanals, 15 Marlas to 24 Kanals, 15 Marlas. In the same noting, the Settlement Commissioner had also noted that the area of National Steel Re-Rolling Mills was 3 Kanals, 16 Marlas, 126 sq.Ft. It was also noted that Railway siding was in Khasra No,357 measuring 5 Kanals, 1 Marla, 185 sq.Ft. According to him, the same was separate and independent property and none of the transferee could lodge any claim to it. The same according to him was to be disposed of through auction. The matter again came up before the Settlement Commissioner (Industries) who on 13-6-1989 with reference to the abovementioned order of the Settlement Commissioner (Industries) dated 13-8-1983 reiterated that the total area of National Steel Re-Rolling Mills was 3 Kanals, 16 Marlas, 126 sq.Ft. This prompted the petitioners herein, to file Writ Petition No,180-R of 1989. In that petition the reply submitted by the Settlement Commissioner (Industries) was that the area falling under the Railway Siding (Khasra No,357) had not been transferred to the petitioners nor was part and parcel of their National Steel Re-Rolling Mills. That petition was accepted on 19-5-1990 that both the orders i,e, 13-8-1983 and 13- 6-1989 had been passed without any notice or hearing the petitioners. The matter was remanded to the Member, Board of Revenue/Chief Settlement Commissioner for entrusting the same to a Notified Officer for disposal afresh. Writ Petition No,65-R of 1991, was then filed by the petitioners for the implementation of the abovementioned judgment which petition was disposed of on 28-4-1991 with the direction that the order of the Court should be implemented as early as possible. The petitioners again filed Writ Petition No,250-R of 1991 qua an order dated 13-11-1991. In which it was held that the petitioners National Steel Re-Rolling Mills had area of 3 Kanals, 16 Marlas, 126 sq.Ft. The co-transferees of the National Steel Re-Rolling Mills had also filed Writ Petition No,52-R of 1992. The said petitions were disposed of on 11-10-1993 remitting the matter to the Notified Officer concerned.
It is in this background that order dated 5-7-1995 was passed by the Settlement Commissioner (Industries).
' In the context of the dispute and the litigation between the parties, it may be mentioned that order dated 5-7-1995 impugned herein, has dual implication and import inasmuch as that the petitioners who were transferees of National Steel Re-Rolling Mills were transferred the said National Steel Re-Rolling Mills situated in Khasra No,333 having area measuring 3 Kanals, 16 Marlas, 126 sq.Ft., and that area measuring 5 Kanals, 1 Marla, 185 sq.Ft. (Railway Siding) situated in Khasra No,357 was neither part of that National Steel Re-Rolling Mills nor had been transferred to them. At the same time, it has been held that the Railway Siding was part and parcel of Ganga Ice Factory which had been transferred to Haji Muhammad Yar, respondent. Thus, legality or otherwise of the impugned order is to be examined in the above context as to what extent, the same is supported by the record.
3. As mentioned above, the transferees of National Steel Re-Rolling Mills as also the transferees of Ganga Ice Factory are claiming that the area of Railway Siding measuring 5 Kanals, 1 Marla, 185 sq.Ft. Formed part of their transferred premises and they are entitled to it. Insofar as the claim of the petitioners (the transferees of National Steel Re-Rolling Mills) is concerned, there has been consistent finding by the Settlement Authorities in the notings/orders that National Steel Re-Rolling Mills which was transferred to the petitioners was situated in Khasra No,333 having area of 3 Kanals 16, Marlas, 126 sq.Ft. Reference may be in particular made to the views dated 13-8-1993, 13-6-1989 and 13-11-1991. In the post remand proceedings, again the learned Settlement Commissioner (Industries/Notified Officer has on taking stock of the whole material such as the revenue record, 'Aks Musavi' and other material forming part of the record and affording opportunity of hearing to the petitioners also come to the conclusion that National Steel Re-Rolling Mills was situated in Khasra No,333 measuring 3 Kanals, 16 Marlas, 126 sq.Ft. And that area measuring 5 Kanals, 1 Marla, 185 sq.Ft of Railway Siding situated in Khasra No,357 was not part and parcel of the said National Steel Re-Rolling Mills. Objection to the order of the Settlement Commissioner by the petitioners is that earlier the Settlement Commissioner (Industries) had in his office noting dated 13-8-1983 observed that, there was some tampering with the record made in order to increase the area of Ganga Ice Factory.
4. According to the learned counsel for the petitioners, the area of Railway Siding measuring 5 Kanal, 1 Marlas 185 sq.Ft., was never put to auction nor formed part of the transfer in favor of Haji Muhammad Yar, respondent. The learned counsel for Haji Muhammad Yar has not only objected to the competency of the present petition on multiple grounds, but also that the view taken by the Settlement Commissioner is fully borne out from the record. According to him, the petitioners cannot agitate the matter as they have no locus standi to claim any thing over and above their own-transferred premises nor can file petition before this Court. According to him, after the issuance of Transfer Order (T.O.) no change can be made therein. Mr. Ahmed Awais, Advocate the learned counsel for the Department supports the order passed by the learned Settlement Commissioner (Industries)/Notified Officer.
5. The record of the Department was sent for at the request of the learned counsel for the parties, which has been inspected and perused.
6. After hearing the learned counsel for the parties and the examination of the record produced by the Department, I am convinced and of the considered view that the claim of the petitioners to the area of Railway Siding is not tenable and has to be repelled. They were transferred National Steel Re-Rolling Mills having area measuring 3 Kanals, 16 Marlas, 126 sq.Ft., comprising Khasra No,333.
They cannot lay claim to any other area over and above their own transferred premises. The area of Railway Siding has not been considered as part of the National Steel Re-Rolling Mills nor can it be done in the presence of the material on the record and considered by the learned Settlement Commissioner (Industries)/Notified Officer. Reliance upon office noting dated 13-8-1983 does not help the petitioners which had dual effect. Even according to the said noting, area of National Steel Re-Rolling Mills was 3 Kanals, 16 Marlas, 126 sq.Ft., besides that, there are variant, conflicting and contradictory nothings in the files made in the secrecy of the office behind the back of the parties and would not be of any use nor can be invoked to the prejudice of a party. That was how in Writ.
Petition No,180-R of 1989 filed by the petitioners, the effect of the same was considered and declared as of no legal effect. If such a note (13-8-1983) could not be invoked against the petitioners. It certainly lacked legal efficacy for any other purpose, but the learned Settlement Commissioner has through the impugned order, qua the claim of the petitioners, recorded the finding and reached the conclusion that they were only transferees of area measuring 3 Kanals, 16 Marlas, 126 sq.Ft., and area of Railway Siding was not part and parcel of the said National Steel Re- Rolling Mills nor was it transferred to them. There is no illegality with the order insofar as the rejection of the claim of the petitioners is concerned. They cannot successfully invoke the jurisdiction of this Court nor have the locus standi to do so. Reference in this context may be made to Ahmad Jamal v. Nazir Ahmad Khan and others (1975 SCM R 24) and Ali Muhammad v.
Makhdoom Sirajul Haq Qureshi (1975 SCM R 33).
7. As regards the claim of the transferee of Gana Ice Factory that he had been transferred the same having area measuring 24 Kanals, 15 Marlas, and the affirmative finding of the Settlement Commissioner (Industries) Notified Officer is concerned, the record speaks to the contrary. From the perusal of the record what emerges is that at the time of auction held on 20-5-1960, in favor of Haji Muhammad Yar, the area of the Ganga Ice Factory had not been mentioned but some sketch was drawn without giving any exact measurement. The highest bid given by Haji Muhammad Yar was of Rs,5,40,000. The auction was confirmed by the Chief Settlement Commissioner. He, however, applied for the reduction of the auction price, thereafter, and was eventually reduced to Rs,4,50,000. Long period was consumed in the verification of compensation books and the adjustment of the price and finally Transfer Order was issued to him on 30-3-1981. Soon, thereafter, it was realized by the Departmental Authorities that area mentioned therein as 24 Kanals, 15 Marlas had been done erroneously. Haji Muhammad Yar was called by the Additional Settlement Commissioner (Industries) who appeared before him on 30-11-1981 and made a statement before him that he was ready for the correction of the Transfer Order in accordance with the measurement at the site. This statement was signed by him. Resultantly, he was asked to surrender the Transfer Order for necessary correction, but the matter again became dormant except some applications and office notings.
8. In this application dated 26-7-1983 made to the Chief Settlement Commissioner/Member, Board of Revenue it was requested by him that "the said Railway Siding situated on Khasra No,357 measuring 5 Kanals, 1 Marla, 185 sq.Ft. May kindly be ordered to be cleared of the unauthorized occupants and its possession given over to me, holding it to be part and parcel of Ganga Ice Factory purchased by me in open Public Auction as a Registered Industrial Concern". His claim was, however, refuted by the Settlement Commissioner (Industries) vide memorandum dated 25-2- 1984 that nothing more can be given to you than the area of the said site-plan which according to our calculations comes to 19 Kanals, 18 Marlas, 25 sq.Ft. If you like, this area can be rechecked with reference to the plan and demarcation given in your presence". This order was not assailed by him.
Thereafter, Haji Muhammad Yar applied for the mutation in his favor, the matter was scrutinized by a Verification Committee which took the view that a revised Transfer Order was to be issued for area measuring 19 Kanals, 18 Marlas, 25 sq.Ft. Instead 'of 24 Kanals 15, Marlas. He was informed accordingly vide letter dated 15-3-1989 and was asked to surrender the Transfer Order for necessary correction. In response thereto. Haji. Muhammad Yar took the position in his application dated 11-4-1989 filed on 25-5-1989 before the Deputy Secretary (Settlement) Board of Revenue, Punjab, Lahore that "It is an established law that Transfer Order once issued cannot be revised. The Government can, however, charge the price of the excess land measuring 4 Kanals and 17 Marlas.
Government has also issued circular instructions that first option may be given to the first allottee.
It is, therefore, humbly prayed that price of the land measuring 4 Kanals, 17 Marlas may kindly be intimated to the petitioners for deposit into proper head of Account and orders be issued for mutation purposes after the deposit of the price of the land and possession delivered". A similar request was urged by him through application dated 12-6-1989 filed on 19-6-1989 addressed to the Board of Revenue praying that "the remaining area of 4 Kanals, 16 Marlas available in property No,S-77-R-144, Gulberg Road, Lahore may kindly be transferred under Para. 30 of the Scheme of Urban Property, as the petitioner is the owner of the partly property measuring 19 Kanals, 19 Marlas and Transfer Order already issued in favor of the petitioner for the entire area may be kept -intact".
Such a request was again repeated vide application dated 5-8-1989. The matter remained pending with the Department, however, he was asked to appear before the Settlement Commissioner (Industries), Punjab on 24-7-1991 when again with reference to his earlier applications mentioned above, it was prayed by him that "the remaining area of 4 Kanals and 17 Marlas (Khasra No,357) available in Property No,S-77-R-144, Gulberg Road Lahore may kindly be transferred under para.30 of the Scheme. Of Urban Property as the petitioner is the owner of the partly property and the Transfer Order No,163 dated 30-3-1981 already issued in favor of the petitioner for the entire area may kept in tact and accordingly the necessary mutation be accorded". There are all representations made by Haji Muhammad Yar which escaped the notice of Settlement Commissioner (Industries)/Notified Officer while passing order dated 5-7-1995. These representations particularly the portions underlined by me would leave no obscurity as to the fact of the matter and the stance of Haji Muhammad Yar. He himself had accepted the position that Transfer Order had been issued in excess of the area than was transferred to him and that he was ready and willing to pay the price for the same so that Transfer Order already issued to him remains intact. In view of such admissions, concessions and stance o Haji Muhammad Yar, it could not be held that he was transferee of area measuring 24 Kanals, 15 Marlas nor could he take such a position later on before the Settlement Commissioner (Industries)/Notified Officer or before this Court. He was estopped in law and precluded from taking self-contradictory position. Inconsistent and contradictory pleas can neither sustain in the Court of law nor be countenanced. Reference in this context may be made to A.R. Khan v. P.N. Boga through Legal Heirs (PLD 1987 SC 107). The order of the learned Settlement Commissioner/Notified Officer to the extent that Haji Muhammad Yar was transferee of area measuring 24 Kanals, 15 Marlas is not sustainable. The matter had to be considered and examined in the light of the abovementioned representations made by him through his written applications. The contention of the learned counsel for Haji Muhammad Yar that after the issuance of T.O./(Transfer Order), there was no power left with the Department to make any change therein, thus, is untenable. The reality being different than the area mentioned in the Transfer Order (admitted and accepted also by Haji Muhammad Yar), it cannot be ignored. The observations of the Hon'ble Supreme Court of Pakistan in Messrs Valcan Company (Pvt.) Ltd., Lahore through Managing Director v. Collector of Customs, Karachi and 3 others (PLD 2000 SC 825) that "Courts are not expected to act in aid of injustice to perpetuate the illegalities or put a premium on ill-gotten gains" is aptly attracted to a situation like this. The Department is thus not denuded of the power to rectify its errors and omissions. It will be thus well within its jurisdiction and authority to make necessary amendments and corrections in the T.O. It may be observed that precedents that after issuance of PTD the Department becomes functus officio, are not applicable to the instant case as the T.O. In this case was issued much after the repeal of the evacuee laws.
The cases where the PTD had been issued before the repeal of laws stand on altogether different footings.
' As a result of the above, while dismissing the petitions of the petitioners for the view expressed in paragraph 6 (supra), the matter is remitted to the Member, Board of Revenue/Chief Settlement Commissioner for examination qua the claim and request of Haji Muhammad Yar in the light of his representations and the observations made, above. This may be done by himself or by a learned Notified Officer to whom the matter may be entrusted.
' There is C.M. No,1384 of 2001 by the applicants therein to be impleaded as party to the petition that they had their unsatisfied urban units which had to be satisfied in view of a direction contained in Writ Petition No,413-R of 1984 dated 30-11-1993. They claim that Khasra No,357 was allotted to them on 30-10-1996 by the Secretary (Settlement), Board of Revenue. Punjab, Lahore in satisfaction of their claim. They have, thus, sought to be impleaded as parties. Besides that the allotment claimed by the applicants was pendente, lite, when the same was not available for disposal, even no such allotment could lawfully be made in view of Muhammad Ramzan and others v. Member (Rev.)/CSS and others (1997 SCM R 1635) and Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others (2001 SCM R 1822). The claim of the applicants, thus, is untenable. The application is dismissed.
' No order as to costs.