1983 PLP 2531 (CLC)

(3) Transfer of Property. ‑‑ (1) "All properties both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government on payment of such price as may be fixed by the Federal Government in con sultation with the Provincial Government, for disposal :‑ (a) in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf ; and (b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Govern ment in this behalf Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land : Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the' Land Regula tion, 1972." Since after the repeal of the evacuee laws Scheme No. 9 for the disposal of available urban properties was introduced on 31st January, 1977 the petitioner Noor Muhammad considering property No. 25/26 as available submitted prescribed form on 5th October, 1977 for the transfer of shop No. 25 in his occupation which was however, rejected by respondent No. 2 on 4th April, 1979 on the ground that since no formal orders of cancellation of property No. 25/26 from Shamshad Ahmad were passed, the property was not available for transfer under Scheme No.

9. Feeling aggrieved Noor Muhammad filed revision before Additional Commissioner, Multan who disposed of the same on .10th November, 1979 with the observation :‑ I have given my due consideration to the facts of the cases. The point regarding auction of the suit property and original transfer of the same to Shamshad Ahmad, is not disputed. The respondents bad been requesting for reduction of the price but the request was turned down vide letter No. 1467‑79/16, dated 2nd January, 1979 from the Board of Revenue, intimating that the question of reduction in price could not be acceded to. It would be noticed that the Settlement Commissioner (Urban) directed that the transfer of the property to Shamshad Ahmad has since been cancelled. The learned counsel for the petitioners argued that in view of this position the property should have been disposed off as available under Scheme No. IX. However, no formal cancellation orders have been passed and the matter being judicial in nature only executive orders bad been passed by the Board of Revenue. At the same time the fact that Shamshad Ahmad did not make payment for the transfer of the property for around 20 years, cannot be ignored and even his heirs have not cared to make payment uptil now. However, it would be noticed that formal cancellation orders have not been passed and till this is done. the property cannot be available for disposal under Scheme No. IX. At the same time we may not wait on indefinitely and allow the respondent to keep part of the suit property in possession and enjoy the fruits thereon which he or his successor are doing for the last over 20 years without payment. This issue has to be settled once for all. Hence I accept these revision petitions, set aside the impugned orders and remand the cases to the learned Deputy Administrator, Residual Properties, Multan with the directions that he should decide the cases of resumption of the suit property immediately after observing due formalities, in the light of Board of Revenue's instructions on the subject. After resumption of the property in compliance thereof the same shall be disposed off in accordance with policy instructions on the subject either by transfer under Settlement Scheme No. IX to eligible occupants, if any, or by auctioning the property as the case may be. He would hear ail the three contestants in the case before passing final orders. The parties will appear before him on 11th December, 1979." On remand, respondent No. _ 2 decided, the matter Noor Muhammad and in favour of respondents Nos.4 to

15. He required them to deposit the balance. The respondents Nos. 4 to 15 accordingly paid the balance on 30th January 1980 and the P.T.D. was issued in their favour on 5thJuly, 1981.

4. It would be remarkable that since reference made by Additional Commissioner on 7th May, 1964 to Settlement Commissioner (Policy) had not been disposed of, the petitioner, therefore, on 19th January, 1980 submitted application to the Additional Commissioner (Revenue) who according to the learned counsel for the petitioner, was a notified Officer within the meaning of section 2 of Act XVI for the disposal of said reference but the application was rejected on 5th Julie, 1980 on the ground that after the repeal of evacuee laws, the Settlement authorities could only deal with documentation work. Respondent No. 2 was, however, directed to re‑check up the matter with concerned authorities at Lahore and get this reference disposed of before the documentation of the suit property is completed. Respondent No. 2 accordingly referred the matter to Additional Settlement Commissioner (Urban), Lahore. The petitioner also moved application before Member, Board of Revenue/Chief Settlement Commissioner, Lahore for the disposal of reference dated 7th May, 1964. The Chief Settlement Commissioner, however, informed the D. S. C. Multan that reference dated 7th May, 1964 was of no legal effect and the order whereby the property 25/26 was transferred to Shamshad Ahmad would hold the field. Hence this writ petition.

5. Before me, the learned counsel for the petitioner has raised the following contentions :‑ (i) Since the disputed property has been cancelled from the name of Shamshad Ahmad on his own application dated 16th August, 1967 (Annex. B), the property was, therefore, available for transfer to petitioner/occupant under Scheme No. IX. To substantiate that property had actually been cancelled from the name of 96 Shamshad, the learned counsel has relied upon document (Annex. F1 to prove that the orders dated 4th April, 1979 and 8th July, 1981 are illegal. (ii) That two shops were transferred to Shamshad Ahmad in violation of para. No. 8 of Schedule of the Act and as such the transfer order dated 27th November, 1959 in favour of Shamshad was illegal. (iii) That the reference made by Additional Settlement Commissioner on 7th May, 1964 in the terms of circular No. 1774‑P. O. L.‑Reh/63, dated 17th April, 1963 being a proceeding pending on 1st July, 1974, the respondent was legally competent to dispose of the same, even it may be on administrative side and as such the order dated 5th June, 1980, whereby respondent No. 1 had declined to interfere is illegal. As against this the learned counsel‑ for respondents Nos. 4 to 15 has vehemently defended the impugned orders. He has submitted that it was factually wrong that the transfer of property No. 25/26 was cancelled from the name of Shamshad Ahmad. According to him document (Annex, is not a genuine document. He also submitted that property are not two shops and in fact it was one shop which had been partitioned and the same was transferred to Shamshad Ahmad not as two shops but as one unit. He further submitted that since the evacuee laws have been repealed, respondent No. 1 has rightly refused to dispose of the reference.

6. I have considered the arguments advanced by the learned counsel for the parties in the light of material placed on the record of the writ petition. I am not inclined to interfere with the impugned orders for the reasons that to my .mind the contentions raised by the learned counsel are devoid of force. As for contention No. 1, 1 find that the document (Annex. F) relied upon by the learned counsel cannot even be looked into because the same is neither a certified nor an attested copy of the order. It is not even attested by the learned counsel. There is no formal order of cancellation. It is not known as to when and by whom the transfer of property No. 25/26 in favour of Shamshad Ahmad was cancelled. The certified copy of the original order cancelling the transfer has no been placed on the record. There is nothing on the record to result or belie the finding of respondents Nos. I & 2 that no formal order of cancellation was passed by a competent authority. In these circumstances, I am of the opinion finding of respondents Nos. I & that the property was transfer has approved.

7. As for contention No. 2, I find that the property was transferred to Shamshad Ahmad with the consent of the petitioner who had preferred to obtain property No. 14/1. Thereafter, for 2J years he kept mum, the orders (Annexs‑A & G) indicate that the disputed property was transferred to Shamshad Ahmad on the basis of mutual agreement and also as one unit. It has been laid down in case `Sh. Fazal Karim v. Settlement and Rehabilitation Commissioner and 3 others' (1981 S C M R 628). that order of Settlement Commissioner holding both the shops as constituting one unit, not shown to be erroneous order, even if shown to be erroneous, property in dispute having been transferred to the respondent nothing held stood available for transfer in favour of the petitioner. This authority gives complete answer to contentions Nos. 1 & 2 raised by the learned counsel. Even otherwise, the question whether the property consists of one shop or two, is a question of fact. The impugned' order shows that the property No. 25!26 was transferred as one unit whereas the petitioner asserts that these were two shops. I am afraid that this disputed question of fact, cannot be gone into by this Court in its writ jurisdiction. .

8. As for contention No. 3, 1 find that respondent No. 1 has applied his mind to this contention and has given cogent and sound reasons in support of his conclusion. I further find that the order dated 7th May, 1964 has already been subjected to the revisions filed against this order one by Noor Muhammad petitioner and other by Shamshad Ahmad which were dismissed by competent authority. Furthermore, to my mind, the submission of case to Settlement Commissioner (Policy) in the terms of circular No. 1774‑P. O. L.‑Reb.;63, dated 17th April, 1963 cannot treated as proceedings pending immediately before repeal of evacuee law within the meaning of subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act; 1975.

9. For what has been stated above, there is no force in the conten tions raised by the learned counsel for the petitioner. It is remarkable that the impugned order dated 25th November, 1959, whereby the disputed shops were transferred to Shamshad was passed with the consent of Noor Muhammad petitioner and as such it would not be proper for him to assail that order or to deprive the legal heirs of Shamshad Ahmad of that property by invoking the Constitutional Jurisdiction of this Court. Furthermore, the copy of the impugned order dated 5th July, 1981 has not been placed on the record so far. The upshot of the above discussion is that the impugned orders cannot be declared to have been passed without lawful authority. The writ petition is accordingly dismissed leaving the parties to bear their own costs. K .M .A. Petition dismissed.