P L D 1969 Lahore 532 (PLP)

Dates of hearing: 22nd and 23rd October 1968. These are three writ petitions in respect of the same property, the residential portion of which has been transferred to Anwar Hussain who is the first respondent in all the three petitions. Petition No. 997 is by Mst. Meraj Fatima, No. 1213 by Mst. Zaheer Bano and No. 1641, all of 1964, by Zamirul Hasan.

2. The material facts are these: Both Zaheer Bano and Anwar Hussain occupied portions of the first floor of the building in question and both applied for a transfer order. Anwar Hussain had specifically applied for the transfer of a room on the first floor and a garage on the ground floor, of which he was in possession. Zaheer Bano in her form had asked for the house which she described as house No. 1, 56 Street, Krishna Building. This building abuts on two roads, firstly the Mall Road and secondly the 56 Street. It is not disputed that this building is the first building on that street and is known as Krishna Building. There were four shops down‑stairs but they have been transferred to their occupants and there is no dispute about it. A part of the ground floor is occupied by Zamirul Hasan, the petitioner in Petition No. 1641, for the purposes of residence. It is not clear as to when he applied for its transfer but his claim was eventually rejected by the Settlement Commissioner and I shall deal with that question when I come to his petition. I shall first deal with the case of Zaheer Bano and Meraj Fatima, her associate, vis‑a‑vis the transfer in favour of Anwar Hussain of the whole residential portion, which means the first floor and a part of the ground floor which is in occupation of Zamirul Hasan. Zaheer Bano was a claimant and she filed her C. H. Form on 12‑7‑1959 for the property as already stated and Anwar Hussain filed his N. C. H. Form on 8‑8‑1959. There were two provisional transfer orders issued, one to Zaheer Bano on 24‑10‑1960 and the other to Anwar Hussain. The P. T. O. was issued to him in the year 1961, but it is claimed on his behalf that the Deputy Settlement Commissioner ordered the transfer of the whole residential portion to him on 31st April 1960. Mst. Meraj Fatima entered into an agreement of association with Zaheer Bano on 2‑2‑1961, whereby the latter transferred all her rights to Meraj Fatima. As it was found that there were two transfer orders relating to the same residential portion of the building, a Deputy Settlement Commissioner Khan Muqarab Khan made a reference to the Additional Settlement Commissioner stating that the property was first transferred to Zaheer Bano and at the second stage to Anwar Hussain and since there were two different orders for the same residential portion, the orders required to be reviewed. The Additional Settlement Commissioner permitted this review by his order dated 16‑9‑1961. The case then came before another Deputy Settlement Commissioner, Mr. I. U. Khan. The learned Deputy Settlement Commissioner dealt with the matter in this way: He referred to the agreement of association between Zaheer Bano and Meraj Fatima and in so far as the whole interest of Zaheer Bano had been transferred by virtue of the agreement of association he held that this legally could not be done. Thus, he rejected the claim of Meraj Fatima. It is not clear from the order whether Zaheer Bano or her representative were present in these proceedings. Her claim is that she had no notice of it. Having thus disposed of the claim of Meraj Fatima and with it that of Zaheer Bano, the Deputy Settlement Commissioner confirmed the transfer of the residentional portion in favour of Anwer Hussain. An appeal was filed by Meraj Fatima which came to be heard by Major Mukaram Khan, Additional Settlement Commissioner, Lahore. There was also an appeal by Zamirul Hasan. Both these appeals were disposed of by the order of the Additional Settlement Commissioner dated 16‑5‑1963, with regard to the appeal of Zamirul Hasan he said that though it was time‑barred he would condone the delay but as he had not made out any case before the lower Court, the mere fact that he filed an N. C. H. Form did not entitle him to the transfer of the property as he was a non‑allottee and had not cleared the arrears of rent. On behalf of Meraj Fatima it was contended that the alleged order of the Deputy Settlement Commissioner in favour of Anwer Hussain was without any date in the first instance and that this was introduced later on. Her, rejected this contention and having done so held that the property had been rightly transferred to Anwer Hussain. No reason for rejecting the claim of Zaheer Bano, which was pressed on behalf of Meraj Fatima as an associate, was however given. Both the appeals were accordingly dismissed. Zamirul Hasan filed a revision which was disposed of by Mr. Aijaz Hussain, Settlement Commissioner and to which I shall revert presently.

3. Both Meraj Fatima and Zaheer Bano filed revision against the order of the Additional Settlement Commissioner before another Settlement Commissioner which was dismissed by him on 5‑5‑

64. He held that against an order in review only a revision was competent and the revision of Zaheer Bano was barred by time and he saw no good reason to condone the delay. He then proceeded to deal with the claim of Mst. Meraj Fatima and merely observed that since Zaheer Bano had not been found to be entitled to the property Meraj Fatima "did not come into picture". An application was made by Zamirul Hasan to be made a party but this was rejected because his revision had already been dismissed by another Settlement Commissioner Mr. Aijaz Hussain. It will be seen that neither in appeal nor in revision the claims of the contesting parties were examined on the basis of considerations upon which priority is to be given under the law. It was after the dismissal of these revision petitions that the matter was brought. to the High Court under Article 98 of the Constitution by the three petitioners, namely, Meraj Fatima, Zaheer Bano and Zamirul Hasan.

4. I have heard Mr. Salim Ahmad Malik for Meraj Fatima, Mr. A. S. Zahid for Zaheer Bano, Mr. Inayat Hussain for Zamirul Hasan and Mr. Abid Hussain Minto for Anwer Hussain, the first respondent. The Department has not chosen to defend these petitions. Now, it may be recalled that Anwer Hussain had applied merely for the transfer of one room on the first floor and a garage on the ground floor. But Mr. Minto contended that since Zaheer Bano, who was the only other applicant, had expressed her, inability to buy the whole residential portion, the only person left in the field was Anwer Hussain, and since he agreed to buy the whole residential portion, the transfer in his favour was correct, because the property was got divisible. This argument is based upon a statement of Mst. Zaheer Bano recorded by an Inspector of the Department which has been produced and is marked as Annexure‑A/1 in the petition of Meraj Fatima. The portion, upon which reliance was placed, reads:‑ "I cannot buy the whole house." It was contended on behalf of Mst. Zaheer Bano that this statement must be read with her C. H. Form, in which she had applied for the house. The statement quoted above has been attempted to be explained to mean only this that Zaheer Bano was not in a position to buy also the shops which were part of the building. Be that as it may, Zaheer Bano had applied on a C. H. Form for the transfer of the property which she described as House No. 1, Krishna Building, Aminchand Street No. 56, Dharampura. Upon this form the residential portion of the building was transferred to her by a P. T. O. The question whether this was earlier or later from the P. T. O. of Anwer Hussain must be determined by the Settlement Commissioner, to whom I propose to remand this case. Mr. A. S. Zahid pointedly drew my, attention to the fact that in the order of the 'Deputy Settlement Commissioner seeking permission to review and in a subsequent order it was expressly stated that the order .of the D. S. C. in favour of Anwer Hussain was without any date. It was further pointed out that the date mentioned is 31st of April. But that month ends with 30th and that this factor would also support the contention that the date was introduced later on: All these and other considerations will naturally be taken into account by the Settlement Commissioner when the matter goes to him: The fact, however, remains that in so far as two transfer orders had been issued in respect .of the same property, the matter came before the Deputy Settlement Commissioner Mr. I. U. Khan to be considered judicially in review. As I have pointed out, he dismissed the claim of Zaheer Bano and Meraj Fatima merely upon the ground that the agreement of association was not valid. Indeed, if this was so, Anwer Hussain himself would not be in better position because be has also transferred all his interests to his associate Bakhtiar Begum. In fact, Mr. Minto for Anwer Hussain frankly stated that this view of the learned Deputy Settlement Commissioner was not correct. This is so, because the Department had relaxed the terms of association in a manner which enabled the occupant to transfer his whole interest to an associate. The learned Deputy Settlement Commissioner did not examine the respective merits of the case of Zaheer Bano and Anwer Hussain. He did not apply his mind to the question whether the property was to be transferred as a whole as a house or it could be divided between the persons who had applied for it and who were in possession. Mr. M into strongly contended that having regard to the definition of `house' in the act, a house, which contains a number of residential units, would still be one house unless declared otherwise by the Settlement authorities. That is so, but when there are more than one claimant for a property, all of whom are in occupation, it must appear from the order of the Settlement Authority that his mind was applied to the question whether the house was to be disposed of to one person or to more than one person. In case he decided to treat it as one house he would still have to consider the question as to which of the several applicants was entitled to preference. That would be upon the several grounds, stated in the Schedule to the Act. This was not even attempt in this case. Unfortunately, when the matter came up in appeal before the Additional Settlement Commissioner, and in revision before the Settlement Commissioner it was again dealt with in, the same perfunctory manner as has already been indicated in the earlier part of this order. The Additional Settlement Commissioner dismissed the appeal of Meraj Fatima on the sole ground that the contention that the order of the D. S. C. in favour of Anwer Hussain was without date had not been, substantiated. This surely could not properly be the sole basil for the dismissal of the appeal. Likewise, when the matter came before the Settlement Commissioner, he rejected the claim on the ground that since Zaheer Bano was not held to be entitled Mst. Meraj Fatima would have no claim. Assuming that the revision of Zaheer Bano was barred by time though no time is fixed under the Act, within which a revision has to be filed, the entitlement of Zaheer Bano would still have to be considered upon the revision by Meraj Fatima which was admittedly within time. But this was not even attempted.

5. It was contended by Mr. Minto that as far as Zaheer Bano is concerned she had not filed any appeal before the Additional Settlement Commissioner and her revision, which was filed before the Settlement Commissioner, was far too belated to be taken into account. In the first place, it is the case of Zaheer Bano that she had no notice of the proceedings before the Deputy Settlement Commissioner and was not aware of the order passed by him and it was for that reason that she did not file any appeal before the Additional Settlement Commissioner and merely filed a revision when she came to know of it. It is contended by Mr. Zahid that in the revision petition these facts were specifically stated and if the Settlement Commissioner had, examined that aspect of the case and given a decision he would have no grievance, but the fact is that there is nothing in the order to show that this point was even considered. It was also urged by Mr. Minto that the appeal to the Additional Settlement Commissioner was not competent. Reliance was placed on section 21(2) which has now been deleted. This read "21(2)‑An appeal shall not lie from an order refusing to review or confirming on review a previous order." The argument was and this seems to have been taken into account by the Settlement Commissioner in the last order that once a matter is reviewed there can only be a revision. I am quite clear that this is not so. Merely because there is a provision for review the right to appeal, which is provided by section 19 of the Act, is not taken away. All that this clause (2) of section 21 provides is that an appeal shall not lie from an order in review either when review is refused or when the previous order confirmed. But that does not take away the right of appeal from the order, of which the review was sought. Mr. Minto contended that if this be so then the appeal of Meraj Fatima before the Additional Settlement Commissioner would be barred by time. To that it is sufficient to say that the Additional Settlement Commissioner did not say so, and even if the appeal was filed beyond limitation, the fact that time was spent in the review proceedings in good faith would be sufficient justification for the condonation of delay in the filing of appeal.

6. As regard the case of Zamirul Hasan, his revision was dismissed by Mr. Aijaz Hussain, Settlement Commissioner, on 31‑5‑63 and not 31‑5‑64 as is stated in para. 11 of the petition. That being so his application to be joined as a party before Mr. Saeeduz Zaman was justifiably refused. It is true that this writ petition was filed on 3rd September 1964, but considering that the matter is being sent back to the Settlement Commissioner for re‑examination, I am not inclined to reject the petition of Zamirul Hasan, on the ground of delay.

7. In view of my finding that at no stage the Settlement authorities had decided the question of entitlement upon considerations of priority as provided by the Schedule to the Act and further because they have not applied their mind to the question whether the residential portion of the house is to be transferred as a whole or in part as separate houses, I declare that the order of the Deputy Settlement Commissioner in review and the further two orders passed by the Additional Settlement Commissioner and the Settlement Commissioner in appeal and revision are without lawful authority. The whole case shall now be placed before the Settlement Commissioner having jurisdiction who shall issue notice to all the parties and after hearing them decide the matter in the light of the observations made above. These three petitions are, therefore, allowed, but since the case is being remanded there will be no orders as to costs. A. E. Petitions allowed. Case remanded.