1988 PLP 224 (SCMR)

ZAFAR HUSSAIN MIRZA, J.--Respondent No.1 was allotted one-half portion of shop No.E-83, Bhakkar, District Mianwali. He applied for the transfer of entire shop and on the basis of agreement of association with respondents 2 to 6, the shop was transferred to the extent of one-half in favour of respondent No.1 and other half in favour of respondents Nos.2 to 6 vide PTO dated 24th April, 1960, followed by PTD dated 12th October, 1966. Petitioner filed a form under revised Settlement Scheme No.VIII for half of the said shop. In revision proceedings the Settlement Commissioner remanded the case -to the Deputy Settlement Commissioner and the latter officer transferred half of the shop in favour of the petitioner by his order dated 12th December, 1977. Aggrieved by this order the respondents challenged the aforesaid order by means of a constitutional petition before Lahore High Court and contended that the PTD having been issued in their favour in respect of the entire shop, the Settlement Authorities had become functus officio and the learned Settlement Commissioner was, therefore, in error to have interfered in their rights in order to consider the claim of the petitioner on a form filed in 1974, under Settlement Scheme No. VIII. This contention prevailed with the learned Single Judge who heard the constitutional petition and it was held that although respondent No.1 was in possession of half of the shop he had in fact applied for the transfer of the entire shop as evidenced by the C.S. Form initially filed by him and, therefore, there was no infirmity in the transfer order in his favour, although subsequently he associated with respondents Nos.2 to 6 in respect of the other half. The learned Judge also accepted the contention that the Settlement Authorities had become functus officio and had no jurisdiction in the matter after the issuance of the P.T.D. The other important ground which prevailed with the learned Judge was that the Settlement Commissioner had illegally interfered with the rights of the respondents on the motion of the petitioner when admittedly he was not in occupation of the shop and his form had been rejected on 8th May, 1974, with the result that he had no locus standi to file a revision subsequently before the Settlement Commissioner. The petitioner sought to urge before the learned Judge that he was in occupation through one Muhammad Ismail under partnership deed but it was found that Muhammad Ismail himself never sought transfer of the disputed portion of the shop and had on the contrary attorned to the respondents as a tenant. On these grounds the learned Judge in the High Court accepted the constitutional petition and declared the order of the Settlement Commissioner dated 28th June, 1974 and the consequential order of Deputy Settlement Commissioner dated 12th December, 1977, as without lawful authority and of no legal effect vide judgment dated 24th March, 1980. In support of this petition for leave to appeal from the judgment of the High Court learned counsel has reiterated the stand taken by the petitioner before the High Court and has submitted that the Rehabilitation Authorities having divided the property into two portions and respondent No.1 being in occupation of one portion only, the entire shop could not legally be transferred on the basis of his form. He has also urged that in fact respondent No.1 applied for half portion of the shop on his C.S. Form. We find no force in these contentions. The High Court has in clear terms held that the respondent No.1 had applied for the entire shop property and we are not in a position to go into this question of fact at this stage. The P.T.0. and P. T. D. were also issued in respect of the entire shop in favour of the respondent which supports their plea that although respondent No.1 was the allottee of half portion of the shop he had applied for the whole shop, Be that as it may- the learned counsel was unable to show to us anything on the record to indicate that any competent Settlement Authority had divided the property so as to form two units for disposal under the Settlement Scheme to different applicants The division made by the Rehabilitation Authorities for purpose of rehabilitation of refugees is inconsequential for purposes Settlement Scheme. Therefore, respondent No.1 was obviously titled to the transfer of the entire property as one unit on the sis of his possession of part thereof. In the result there is no substance in this petition which is accordingly dismissed. Q. /G-55/S Petition dismissed.