1983 PLP 1714 (CLC)

‑‑No. 241‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2 (2)‑Industrial Assistant Registrar illegally attaching property in question and transferring same to respondent when property formed part of compensation pool‑Case of petitioners for allotment of land before Settlement Authorities but Settlement Commissioner declining to dispose of their revision petitions in view of attachment order of Industrial Assistant Registrar‑Order of Industrial Assistant Registrar declared without lawful authority and Settlement Commissioner's order also rendered of no legal effect‑Revision petitions, held, shall be treated pending and disposed of in accordance with law by officer authorised under S. 2 (2) of Act XIV of 1975. Malik Amjad Hussain for Petitioners. Ihsan Ali Naqvi for Respondents Nos. 1 and

2. Malik Muhammad Nawaz for Respondents Nos. 3 to

6. Date of hearing : 19th April, 1983. This judgment shall dispose of Writ Petitions Nos. 502/77, 878/R‑77 and 1186/R‑77 as common questions of law and facts are involved therein. It shall, however, remain on the file of W. P. No. 502/77.

2. The facts which led to the institution of these writ petitions are that Dr. Jan Muhammad Alvi, was a borrower of the Pak Industrial Co‑operative Bank Limited, Lahore, and failed to clear his liability. He was an applicant before the Settlement Department, for transfer of property No. S‑64‑R‑141, Anarkali, Lahore. In order, to repay the loan, he made an arrangement with Muhammad Yousaf and others (respondents Nos. 3 to 6 in W. P. No. 502/77) and in the year 1972 passed on the possession of the property aforesaid to them. The Industrial Assistant Registrar, in exercise of the powers vesting in him under Para. 6 of Martial Law Order 241, by his order dated 10th April, 1972 attached the lower portion of the property comprising a shop and on negotiation basis, transferred the same to the said respondents against payment of Rs. 60,235.27, which was the amount, then outstanding against the borrower.

3. On the Settlement side, in addition to Dr. Jan Muhammad Alvi, Dr. S. S. Hussain and Ch. Habib Ahmad petitioners also filed the requisite forms for transfer of the property to them. In fact, there was a contest between these three applicants. The Deputy Settlement Commissioner by his order dated 12th October, 1960 transferred the whole property to Dr. Jan Muhammad Alvi. However, on appeals filed by his rivals, the Additional Settlement Commissioner on 1st February, 1961 remanded the case to the Deputy Settlement Commissioner. The latter by his order dated 6th September, 1963 held that none of the applicants was entitled to the transfer of the property and ordered its disposal through auction. This order was maintained by the Additional Settlement Commissioner and the appeals against the same were dismissed. The three applicants then went, in revisions, which were disposed of by the learned Settlement Commissioner by means of a consolidated order dated 17th January, 1977 impugned through these writ petitions. He was of the view that as the property vested in the Central Government, its disposal by the Industrial Assistant Registrar, was not valid. But the disposal having been made under M. L. O. 241, he declined to intervene and the affected parties were asked to seek their remedy before the proper forum. It is under these circumstances that the petitioners have come to this Court. Writ Petition No. 502/77 has been filed by the legal representatives of Dr. Jan Muhammad Alvi who died in the meanwhile. Writ Petition No. 878/R‑77 has been brought by Dr. S. S. Hussain and whereas the third Writ Petition has been instituted by Ch. Habib Ahmad.

4. I have heard the learned counsel for the parties and examined the record. The main argument advanced on behalf of the petitioners was that at the relevant time, the property in dispute formed part of the compensation pool ; Dr. 'Jan Muhammad Alvi did not hold any right therein ; under sections 7 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, property forming part of the compensation pool could neither be attached nor disposed of in any manner and that, therefore, the Industrial Assistant Registrar acted illegally and without lawful authority, in attaching the property and transferring the same to the said respondents. An additional argument advanced on behalf of Dr. S. S. Hussain was that he was applicant for transfer of the whole unit ; only a portion of the property comprising shop was disposed of by the Industrial Assistant Registrar and thus, the learned Settlement Commissioner, could deal with rest of the property and at least to that extent, laying off the hands by him, amounted to failure to exercise jurisdiction lawfully vesting in him.

5. On the other hand the learned counsel for the respondents submitted that Dr. Jan Muhammad Alvi deceased had valuable interest in the property, which within the meaning of Para. 6 of MLO 241 could be categorized as "assets belonging to him" and thus, its attachment by the Industrial Assistant Registrar and alienation to the respondents was in accordance with law. To highlight the connotation of the word "belonging", the learned counsel relied on The Sailkupa Co‑operative Multipurpose Society, Ltd v. Jahangir alias Abut Khair Muhammad Hadi‑ul‑Karim (P L D 1957 Dacca 374), His other contention was that the deceased agreed to transfer his rights to the respondents ; in past performance of this agreement he conveyed its possession to them and later on was instrumental in getting the impugned order passed by the Industrial Assistant Registrar. In the submission of the learned counsel as the deceased did not challenge this order during his life time, his heirs were bound by his conduct. On the authority of S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another (1978 S C M R 367) he further submitted that in view of the deceased's conduct, they were not entitled to any relief in exercise of the writ jurisdiction of this Court, even if the order passed by the Industrial Assistant Registrar, did not conform to the requirements of law. The learned counsel, raised another objection, that only the Settlement Department could be aggrieved by the disposal of the property ; the heirs of the deceased would have no locus standi to bring the writ petition. He also raised the plea of laches in respect of all the three writ petitions. It is not denied that on 10th April, 1971 when the property was attached, it did not stand transferred to the deceased but formed part of the compensa tion pool. The only right which he held in the property, till his death, was that he was an applicant for its transfer. Such a right cannot at all considered as an asset, capable of attachment and disposal through sale or otherwise. In Syed Abdur Rashid v. Pakistan etc. (P L D 1962 S C 42) the Supreme Court on examining the object of the Compensation Act maintained : ‑ .......It will be noticed that the purpose of even the latter Act is neither to grant properties in lieu of the properties expropriated in India nor to limit the benefits of the scheme to such expropriated displaced persons but its purpose extended to the rehabilitation of others also who did not fall in the above category. This was, therefore, not a case in which a displaced person was entitled as of right to get properties in Pakistan equivalent to properties left by him in India, but it was a measure designed purely to alleviate the hardship and misery of as large a number as possible of displaced persons who had been compelled as a result of the disturbances consequent upon the setting up of the two Dominions of India and Pakistan to migrate from India, by compensating them or rehabilitat ing them." Again in Mian Rafi‑ud‑Din v. The Chief Settlement and Rehabilitation Commissioner (P L D 1971 S C 252) while determining the rights of an applicant for transfer of property under the Act, at page 276 of the report, the Supreme Court took the view :‑ " ..The Permanent Transfer Deed issued only when all payments have been made. Until such final determination, the right to transfer of a particular property neither accrues nor vests, for, even through prima facie a person may be entitled to prefer a claim for the transfer of a specific property that does not necessarily give him a right to that property, because, as was pointed out in Rehmatullah's case the property may be taken out of the Compensation Pool by virtue of an order passed under section 10 (b) of the Act by the Central Government." In the face of this enunciation of law, the argument that the deceased of valuable rights in the property which could be attached and sold away is wholly fallacious. Needless to mention, that under section 7 of the Act, no property forming part of the Compensation Pool, could be proceeded against for any claim, in execution of any decree or order or by any other process of Court or other Authority. In Muhammad Afzal v. The Registrar Co‑opera tive Societies and others (1983 C L C 387) on facts not much dissimilar to that of the case in hand, I had the occasion to observe that unless a property is shown to be belonging to a borrower, it cannot be attached, under the provisions of M. L. O.

241. The reliance of the respondents' learned counsel on the Dacca judgment is misplaced. In that case, in construing the word "belonging" as found in Order XXXIII, rule 2, C. P. C. the Court observed that it includes, not only the movable and immovable properties in posses sion, of the person suing in forma pauperis, but also those properties in which he has some interest. These observations, with no stretch of imagination can be extended to the instant case.

7. It is, thus, obvious that the Industrial Assistant Registrar, was not alive to the true status of the property in dispute and) the deceased's rights therein. His jurisdiction was confined only to the property and assets belonging to the defaulter borrower. In this view of the matter, in proceeding against the property, forming part of the Compensation Pool, he acted illegally and in excess of the jurisdiction conferred on him by law. Such an illegal action has no protection in law.

8. As to the merits of the case, the deck having been cleared, I now proceed to deal with the other objections raised on behalf of the respondents. There ‑is nothing on this file, to show that the deceased entered into some agreement with the respondents to alienate his rights, if any, in the property in dispute, in their favour. In this respect, two documents Annex : `R/1' and `R/2', on which the learned counsel heavily relied, merely demonstrate that possession of the property was passed on by the deceased to them and nothing beyond that. The possession alone would not confer any right on the respondents, as the property is already subject‑matter of litigation between the applicants under Settlement Scheme No.

1. The record also does not disclose that the deceased invited the attachment of the property under M. L. O.

241. I, therefore, find nothing objectionable in his conduct which may be visited upon his heirs, to disentitle them to assail the order of the Industrial Assistant Registrar which has been found to be patently illegal. It is correct, that the deceased did not question the validity of the attachment and disposal of the property before any forum ; may be for the reason that he laboured under the impression, that under no circumstances, an order under M. L. O. 241 could be challenged ; nevertheless, before the Settlement Authorities he has been fighting for his rights till. he expired. Upon the facts obtaining on the record I see no good reason to apply the rule laid down in S. Sharif Ahmad Hashmi's case and perpetuate an illegal order against the petitioners. The Supreme Court, in the case of Rahim Shah v. Chief Election Commissioner (P L D 1973 S C 24) while approving the observations made by Denning, L. J. in Northumberland Compensation Appeal Tribunal (1952) 1 A E R 122, maintained that.:‑ "certiorari provides a supervisory control that extends not only to see that the inferior Tribunals keep within their jurisdiction, but also to see that they observe law."

9. With regard to the locus standi of the heirs of the deceased, it may be observed that they have the right to call upon the Settlement Authorities to determine his entitlement and if he is found eligible, to transfer the property in their names. Since the order passed by the Industrial Assistant Registrar stood in their way and the learned Settlement Commissioner, despite regarding it as an invalid order, declined to proceed with the hearing of the matter, they were constrained to approach this Court. The law on. this subject as enunciated in Mian Fazal Din v. Lahore Improvement Trust, Lahore (P L D 1969 S C 223) is that if a person shows that he has some personal interest, in the performance of a legal duty, which if not performed, or performed in a manner not permitted by law, would cause him some personal loss, he can seek through judicial review, the removal of an order affecting his interest adversely. The mere fact that the Settlement Authorities, did not choose to question the action of the Industrial Assistant Registrar, would not denude the petitioners of their right to assail the same. I, therefore, find no substance in the challenge thrown to the petitioners, locus standi.

10. Only question of laches remains to be looked into. It is to be seen that the delay by itself is not enough to refuse invocation of writ jurisdiction. It is only when there is such negligence to assert one's right that it amount to waiver and acquiescence that the Court may refuse relief in exercise of its extraordinary jurisdiction. In the instant case, the deceased and the other two petitioners as well, have been litigating on the Settlement side, for the transfer of the property, of which the respondents could not have been unaware. When the Settlement Commissioner declined to decide their revision petitions on merits, they compelled to seek redress of their grievances through this Court. I am, therefore, not persuaded to hold that the writ petitions suffer from laches.

11. As a result of this discussion, the three writ petitions are accepted with costs ; the attachment of the property and its transfer by the Industrial Assistant Registrar to the respondents, are declared to be without lawful authority and the Settlement Commissioner's order dated 17th January, 1977 is also rendered of no legal effect. Consequently, the three revision petitions shall be treated as pending and disposed of in accordance with law by an Officer authorized under section 2 (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. M. Y. H Petition accepted.