1986 PLP 2377 (MLD)

The Deputy Settlement Commissioner (Plots), Lahore on receipt of the remand order mentioned above heard the case and first allegedly passed a short order, dated 22-11-1976 and thereafter on the same date passed a detailed order by which he transferred the house in dispute to Mst. Hameeda Begum, respondent No.1 under Settlement Scheme No.VIII. Feeling aggrieved by the abovementioned order of the Settlement Commissioner, dated 21-10-1975 and the two orders both, dated 22-11-1976 passed by the Deputy Settlement Commissioner (Plots) Lahore the petitioner has come up to this Court in the present Constitutional petition.

3. The learned counsel for the petitioner raised the following contentions:-- (i) That the order of the Deputy Settlement Commissioner (Plots) Lahore, dated 22-11-1976 is without jurisdiction as the property in dispute was a house; (ii) That the detailed order of the Deputy Settlement Commissioner (Plots), Lahore dated 22-11-1976 is not in accord with the short order passed by him on the same date and, therefore, amounts to review which was not permissible; (iii) That the impugned order of the Deputy Settlement Commissioner has been passed in contravention of the order of the Settlement Commissioner, Lahore Division, Lahore dated 21-10-1975 by which the case was remanded inasmuch as neither any enquiry was held by the Deputy Settlement Commissioner as regards the filing of the Form by respondent No. 1 nor was the spot inspected. It was in the same context urged that no Form was filed by the petitioner and none has been entered in the C . S.O. II Register; (iv) That the impugned detailed order of the Deputy Settlement Commissioner (Plots) Lahore, dated 22-11-1976 is otherwise also liable to be set aside as by this order respondent No.1 has been given more than what she had claimed herself. Elaborating this contention the learned counsel submitted that respondent No.1 had only sought for transfer of a room built on one-fourth of a Marla whereas the whole of the house built on 2 Marlas has been given to her; and (v) That the Permanent Transfer Deed having been issued in favour of the petitioner the property was no longer in the compensation pool so as to be dealt with by the Settlement authorities.

4. On the contrary the learned counsel for the contesting respondent No.1 contended, First,

That the petitioner having not challenged the order of the Settlement Commissioner, Lahore Division, Lahore, dated 21-10-1975 is not only precluded from challenging the said order now but also he ceased to have any locus standi to file the present constitutional petition. He relied in this regard on Mst. Nawab Bibi v. Ghulam Sarwar reported as 1982 C L C 2409; Secondly,

That in the present petition controversies of fact which have been duly decided by the forums of exclusive jurisdiction have been raised such as non-filing of N . C . H . Form etc., which cannot be permitted as held in Enayat Bibi etc. v. Mst. Salamat Bibi etc. reported as 1981 SCMR 724; Thirdly,

That the form had been duly filed, as has been held in the order of the Deputy Settlement Commissioner (Plots) Lahore, dated 22-11-1976 with reference to the record of the case; Fourthly,

That the bare reading of the impugned order of the Deputy Settlement Commissioner (Plots) Lahore shows that an enquiry had been held as directed by the Settlement Commissioner; Fifthly,

That it has been incorrectly asserted that the respondent claimed a room built over one-fourth of a Marla as in her revision she has disputed the auction of the house in dispute and, therefore, her claim was as against the whole house. It was also urged in this behalf that even if it be assumed that the respondent claimed less than what she has been given it was quite lawful as has been held in Mahmood Hussain v. Zahoor Hussain etc. reported as P L D 1982 Lah.

442. Sixthly,

That there is no variation in the short order and the detailed order of the Deputy Settlement Commissioner (Plots) Lahore, dated 22-11-1976 and that only an uncertified copy of the short order has been placed on the file of which the respondent is not even aware; and Lastly,

That the transfer to the petitioner has been made under Settlement Scheme No.VIII for which no specific form was required to be filed and only an application would have sufficed.

5. Having given consideration to the controversy involved, I am of the view that apart from the position that the petitioner has no case on merit his petition is liable to be dismissed on the short ground that he has no locus standi to file the present petition, and, in particular to challenge the order of the Settlement Commissioner passed as far' back as 21-10-1975. Not only the said order of the Settlement Commissioner Lahore, dated 21-10-1975 was not challenged by the petitioner any further but also he acquiesced therein by appearing and participating in the enquiry held by the Settlement Commissioner in pursuance thereof. He would, therefore, be precluded from agitating against the said order.

6. It having also been held in 1982 C L C 2409 that the auction held during the pendency of any form /application of an occupant seeking transfer of a property which auction was set aside and the case remanded to the Deputy Settlement Commissioner for disposal of form and such order of remand having not been challenged by the auction purchase any further and the Deputy Settlement Commissioner having declined transfer the property to the opponent on the ground that no form had been filed, the auction purchaser nevertheless would have no status to claim the transfer of the property to him on the ground that no form had been filed by the opponent when the property is transferred to the occupant under another Settlement Scheme, the petitioner would have no locus standi to challenge the order made in favour of respondent No.1 under Settlement Scheme No.VIII.

7. The other preliminary objection on which this petition has been sought to be dismissed also has force in that the question essentially sought to be raised in this petition revolves around disputed facts and the same as is well-settled cannot be a legitimate subject for adjudication in the constitutional jurisdiction of this Court.

8. Apart altogether from the above position that the present petition could be dismissed on the two preliminary objections raised on behalf of respondent No.1 the petitioner appears to have no case on merits as well. The premises of the arguments of the learned counsel for the petitioner on merits is that no enquiry had been held by the Deputy Settlement Commissioner after remand, that no form had been filed by respondent No.1, and that the respondent having claimed only a room built over one-fourth of a Marla which was giving to her by virtue of the short order of the Deputy Settlement Commissioner, dated 22-11-1976 the detailed order also, dated 22-11-1976 giving the whole of the house in dispute to respondent No.1 is at variance with the short order and being a review which was not permissible the said order is liable to be quashed.

9. I am afraid all these contentions do not find support from the record before me. In the impugned order, dated 22-11-1976 on the basis of the enquiry in which the parties had participated and some official of the office of the Deputy Settlement Commissioner III, Lahore has also appeared with record, the Deputy Settlement Commissioner after perusal of the record had come to the conclusion that the petitioner had made an application to the Chief Settlement Commissioner on 1-7-1972 which was forwarded by him to the Additional Settlement Commissioner and received in the latter's office at serial No.2700 on 1-7-1972, and further that on 3-7-1972 the said application was sent to the Deputy Settlement Commissioner III, Lahore where it was diarized at No.1716, dated 4-7-1972. It has also been held in the said order that the property being situated in Centre III and the application of respondent No.1 being still pending the auction held on 11-4-1973 was void and had been rightly set aside. Thus, there is a clear finding of fact about the filing of an application form by respondent No.1. Now whether or not that application was accompanied by an N . C . H . Form would be wholly immaterial as the property has been transferred to the contesting respondent under Settlement Scheme No.VIII which did not require the filing of any specific form but transfer could be sought for on making a simple application. It cannot, therefore, be said that the Deputy Settlement Commissioner did not hold an enquiry.

10. Yet another aspect of the matter is that the assertion behalf of the petitioner that respondent No.1 claimed only one room built over one-fourth of a Marla is not supported by anything placed on record by the petitioner. Reliance in this regard has been placed on the observation made in the order of the Settlement Commissioner, Lahore Division, Lahore, dated 21-10-1975 but this observation finds no support from the revision filed by the contesting respondent before the Settlement Commissioner in which the auction of the whole of the house has been sought to be annulled and only in the narration of facts it has been mentioned that the petitioner had after demolition of the house in dispute built a room on a portion of the property in dispute. Even if it be assumed that by virtue of the detailed order of the Deputy Settlement Commissioner (Plots) Lahore, dated 2-11-1976 something has been given to the contesting respondent which she had not claimed the order by this fact alone would not become illegal as pointed out by the learned counsel for respondent No.1 on the basis of the judgment reported as P L D 1982 Lah.

442. In view of the forgoing discussion I find no merit in this petition which is accordingly dismissed with costs. A . A . Petition dismissed.