1988 PLP 1153 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑These appeals arise out of same case, therefore, they are being disposed of together, Mr. A.R. Sheikh, the learned counsel for the appellant, took us through the impugned judgment and also gave the facts of the case, which, for purpose of the disposal of the appeals, briefly stated are: The appellant allegedly submitted form for the transfer of the evacuee property in dispute under Settlement Scheme No.VI on 25‑11‑1959. Notwithstanding the same, property which comprised of Units No.7 and 9, was separately auctioned in favour of the predecessors‑in -interest of the contesting respondents in 1960. The transferees made demands from the appellant for payment of rent to which he protested on 19‑11‑1963 through a detailed written notice sent through his, lawyer. While objecting to the rate and demand of rent, the appellant had not mentioned and claimed in this notice that he had also applied for the transfer of the properly nor he stated that his form was yet to be considered and disposed of. Not only this, he waited for nearly another three years and made an application on 3‑8‑1966 to the D.S.C. for the disposal of his aforementioned form. Admittedly he had not challenged the confirmation of the auctions resulting in the transfer of the property to the respondents through the hierarchy of the appeal,/ revision etc. On the application dated 3‑8‑1966 the D.S.C. took up the matter, independently on the auction proceedings. The appellant after some intermediary failure, ultimately, succeeded in obtaining a transfer order in his favour from the Settlement Authority in the meanwhile to another round of litigation, the matter also came to the High Court.

2. On the re‑initiation of the case by the appellant on the afore‑1 mentioned miscellaneous application and its final culmination in favour' of the appellant in the settlement forum, the respondents side filed writ petition in the High Court which having been allowed and the transfer through auction having been restored in favour of the writ petitioners, the appellant sought leave to appeal, which was granted to examine the validity of the judgment of the High Court. The learned counsel has challenged the impugned judgment both on the ground of law as well as of fact.

3. The learned single Judge in the High Court has, after a elaborate discussion and examination of the relevant records, held that the transfer form alleged to have been submitted by the appellant on 25‑11‑1959 was in fact not then submitted and further that it was inserted/ smuggled into the settlement record later on.

4. With the help of the learned counsel, we examined the reasoning of the High Court in support of the above finding. Despite the fact that there are one or two items of misreading of the material, we are convinced and satisfied that the form relied upon by the appellant was not submitted before the Settlement authorities on the date mentioned in the receipt register of such like forms; and further that, at the time of auction in favour of the respondents side, there was no form for transfer submitted by tile appellant which had not been disposed of. It is not necessary to go into the details of these findings in the circumstances of this case, because after having been asked to satisfy us otherwise the learned counsel clearly failed to do so.

5. The learned counsel, however, vehemently contended that the High Court judgment cannot be sustained; as, it could not interfere with the findings of fact by the Settlement authority, in its constitutional Writ Jurisdiction. 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. This Court, the learned counsel admits, has in some earlier decisions ruled that the normal rules of treatment of a case in its Writ Jurisdiction do not apply to the consideration of a settlement case by the High Court in the same jurisdiction.

6. The learned counsel then contended that the learned Single Judge in the High Court, after having decided the case on merits, at one stage thought of remanding it. But contrary to the rule laid down by this Court in similar settlement cases, finally decided the case restoring the transfer through auction, it favour, of the respondents side.

7. Even if the last argument of the learned counsel would have had some force we would not have accepted these appeals on this ground alone; because; the remand of the cases at this stage would have entailed unnecessary expense and further delay at this fag end of the settlement operations. But on this question also in the fact of this case, we feel that it would have been an exercise in futility if the case would have been remanded for any further action. The reason being that the entire basis of the appellant's case having been found non‑existent by the High Court, by rejecting the plea' with regard to submission of the transfer form by the appellant on 25‑11‑1959, there was nothing left to be examined on remand by the Settlement authority. The orders impugned before the High Court having rightly been set aside; the obvious undeniable result was the restoration of the transfer orders through auction, which had been passed in favour of the respondents side, nearly three decades ago.

8. In the light of the foregoing discussion, these appeals are dismissed with costs. M.Y.H./M‑431/8 Appeals dismissed.