1988 PLP 1987 (CLC)

Hazrat Mirza Bashir‑ud‑Din Mahmud Ahmad v. Settlement Authority P L D 1971 Lah. 552 and Muhammad Siddiq and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others P L D 1965 SC 123 ref. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑

0. VII, R. 11‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 958), Ss.10, 22 & 25 & Sched.‑‑Rejection of plaint‑ Dispute between parties as ‑to whether allotment of property in dispute to deceased respondent had to be cancelled or as to whether property could be transferred to deceased petitioner‑‑Such matters rest within exclusive jurisdiction of Settlement Authorities and jurisdiction of Civil Courts to adjudicate thereupon was specifically barred under Ss.22 & 25 of the Act‑‑Plaint, held, was rightly rejected. M. Ihsanul Haq for Petitioner. Muhammad Iqbal for Respondent No.l. Kh. Muhammad Taseer for Respondents Nos. 2 and

3. Date of hearing: 1st March, 1988. The shop in dispute was transferred to respondent No.2, Qazi Bashir Ullah, deceased‑respondent No.2 (now represented by his legal representatives) vide order dated 2‑9‑1961. A P.T.O. dated 24‑11‑1961 was issued in his favour. He repaired or rebuilt the said shop where upon a question arose about the assessment and payment of the. price thereof. Munshi Siraj Din deceased petitioner now represented by his legal representatives, filed an application on 3‑10-1962 before the Rehabilitation and Settlement Authorities complaining that the said shop could not be transferred to respondent No.2 and praying that the same may be transferred to him. However, he never filed any application for transfer of the shop to him, on the prescribed form. The Settlement Commissioner, Lahore vide order dated 11‑6‑1974 ordered respondent No.2 to pay the price of the property in dispute as a shop within one month otherwise his transfer shall stand cancelled. The price assessed under the said order was paid/deposited by respondent No.2 within the specified time. The deceased petitioner filed this suit challenging the said order dated 11‑6‑1974 of the Settlement Commissioner, Lahore, alleging that the same was illegal as the allotment/ transfer of the shop could not be made in favour of Qazi Bashir Ullah and praying that permanent injunction should be issued to the Settlement Department directing them to transfer the property to the deceased‑petitioner/plaintiff. Without calling for a written statement the learned Civil Judge, Ist Class, Sialkot framed the following issue:‑ Whether or not this Court is competent to entertain and adjudicate upon the plaint? He decided the said issue against the petitioner and consequently rejected the plaint under Order VII, Rule 11, C .P. C . holding that the Civil Court has no jurisdiction in the matter in view of the provisions of law contained in sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The deceased ‑petitioner filed an appeal which was dismissed by the learned Additional District Judge, Sialkot vide order dated 24‑7‑1977. This revision petition has been filed to challenge the said orders.' I have perused the record and have heard the learned counsel for the parties.

2. Admittedly the property in dispute was an evacuee property and admittedly the same was transferred in favour of Qazi Bashir Ullah vide order dated 2‑9‑1961 and a P.T.O. was also issued on 24‑11‑1961. It is also admitted that the deceased petitioner never filed any application on 'any prescribed form. Similarly, there is no dispute that the transfer order dated 2‑9‑1961 and P.T..O. dated 24‑11‑1966 were never cancelled and the transfer, therefore, stood in tact in the name of Qazi Bashir Ullah. It is to be seen whether in these circumstances a civil Court could have jurisdiction in the matter or not. The learned counsel for the petitioner has conceded that so far as the prayer for issuance of the permanent injunction is concerned a civil Court has no jurisdiction to adjudicate upon or to grant the same. He however, contends that the impugned order dated 11‑6‑1974 of the Settlement Commissioner, Lahore can be examined and even set aside the same as it is a nullity in law. His contention is that no opportunity of hearing was provided to the petitioner before passing the said order. He argues that when the petitioner had filed an application on 3‑10‑1962 for the transfer of the shop he should have been heard before passing the said order dated 11‑6‑1974. He has referred to Ghazi Khan v. Republic of Pakistan P L D 1973 Kar. 624, Hamid Hussain v. Government of West Pakistan and others (1974 S C M R 356), Muhammad Swaleh and another v. Messrs Uhited Grain and Fodder Agencies (P L D 1964 SC 67), Muhammad Jemil Asghar v. The Improvement Trust. Rawalpindi (P L D 1965 SC 698) to press his point that if an order had been passed by a Tribunal without jurisdiction it can be set aside by a civil Court and it has to be taken to be non‑existent. There is no dispute about this proposition of law. However, the order dated 11‑6‑1974 suffers from no legal infirmity because the deceased‑petitioner had no right to be heard in the proceedings relating to the assessment of the price of the shop in dispute. As already pointed out above the deceased‑petitioner had . never made any application on the prescribed form and therefore he was not an applicant for transfer of the shop within the meaning of law and, therefore, he had no right to be heard in the said) proceedings. His application dated 3‑10‑1962 was just a miscellaneous application or an application as an informer and no more. The deceased respondent 2, Qazi gashir Ullah, was admittedly in possession of the shop in dispute or the site in dispute when the same was transferred to him. He repaired .the same or built a new shop thereon and was under the law entitled to the transfer of the same whether he was a local or a refugee. In this respect reference to paras 5 and 6 of Memo No.2240‑P1‑Reh‑60, dated 3rd February 1960 published in the Manual of Settlement will be .useful. The same will show that such a demolished or burnt site or shop could be transferred to a local or a refugee as a shop on payment of price as a shop if the same was in possession of the transferee. Similar is the position when we look into para. 13 of Part 3 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Under the law contained therein such a shop had to be transferred to any one in possession whether he was a local or a refugee. Therefore, the dispute related to the mode of assessment of the price of the shop and that dispute was between Qazi Bashir Ullah and the Settlement Department and the deceased petitioner had no say in or connection therewith. He could seek allotment of the shop only if the shop was available for allotment and he could seek the allotment only if he had made an application on the prescribed form. Therefore, he was not an aggrieved person or an affected person who had to be heard in the matter under any provision of law or under the principles of natural justice. This conclusion is also supported by Hazrat Mirza Bashir‑ud‑Din Mahmud Ahmad v. Settlement Authority (P L D 1971 Lah. 552). He had no locus standi even as an informer in view of the law laid down in Muhammad Siddiq and 2 others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (P L D 1965 SC 123). Therefore, the impugned order dated 11‑6‑1974 did not suffer from any legal infirmity and was not bad for not providing any opportunity of hearing to the deceased‑petitioner. '

3. As the order dated 11‑6‑1974 is legal and valid the dispute between the parties remains as to whether the allotment in favour of Qazi Bashir Ullah had to be cancelled or as to whether the property B in dispute could be transferred to the deceased‑petitioner. These are the matters which rest within the exclusive jurisdiction of Rehabilitation and Settlement Authority and jurisdiction of the civil Courts to adjudicate thereupon was specifically barred under sections 22 and 25 ibid. Therefore, the plaint was rightly rejected by the learned trial Court and the appeal was rightly dismissed by the learned appellate Court. The revision is dismissed with costs. S.S.Q/S‑209/L Petition dismissed