1986 PLP 1344 (CLC)

Date of hearing: 24th February, 1986. By this order I propose to dispose of C.P. Nos.55 of 1976 and 102/1976 as both these petitions relate to same property and the questions of law and facts arising in them are also common. C.P. No.55/76 is filed by Abdul Sattar Kathuria against Deputy Settlement Commissioner (General) Karachi, Mst. Saeeda Lali and Feroz Ahmed while petition No.102/76 is filed by Feroz Ahmed against Deputy Settlement Commissioner, Karachi, Additional Settlement Commissioner/ Authorised Settlement Commissioner, Karachi, Mst. Saeeda Lali and Abdul Sattar. In order to avoid confusion, I will hereinafter refer the petitioners and the respondents in the above petitions by their respective names or designation. The following admitted facts forming the background of present litigation may be stated here:

2. Plot No.GRE 81 situated in Garden East, Karachi was put to public auction by the Settlement Authorities on 29‑6‑1960. This plot was purchased by Feroz Ahmed against highest bid of Rs.85,

000. P.T.O., dated 19‑9‑1961 and P.T.D., dated 27‑8‑1963 were issued to Feroz Ahmed in respect of the property transferred to him in auction. The admitted position on record is that at the time of auction as well as in the transfer document issued in favour of Feroz Ahmed the area of the plot was shown as 1,200 sq. yds. It appears that Feroz Ahmed had leased a portion of Plot No. GRE 81, measuring 253 sq. yds. to Mst. Saeeda Lali who was is running some factory there. Feroz Ahmed in the year 1966 instituted a Rent Case No. 226/66 against Mst. Saeeda Lali for her eviction. Mgt. Saeeda Lali in the above rent case instituted by Feroz Ahmed denied relationship of landlord and tenant between the parties but the Rent Controller by order, dated 7‑12‑1967 held that between Feroz Ahmed and Mst. Saeeda Lali the relationship of landlord and tenant existed. Mst. Saeeda Lali challenged the order of Rent Controller holding her as the tenant of Feroz Ahmed in appeal and by about the same time she also approached the Settlement Authorities through a Misc. application, dated January, 1968, praying that Feroz Ahmed is transferee of only 1,200 sq. yds. out of Plot No. GRE 81, while the remaining 500 sq. yds. is still un-disposed which is in her possession and same may be transferred to her under the provisions of Act 28 of 1958. Feroz Ahmed opposed this application and urged that he was transferee of entire Plot No. GRE 81 and Mst. Saeeda Lali is her tenant and as such the present proceedings are incompetent. The Deputy Settlement Commissioner after hearing Mst. Saeeda Lali and Feroz Ahmed by order, dated 19‑2‑1968 came to the conclusion that the plot transferred to Feroz Ahmed measured only 1,200 sq. yds. and that 500 sq. yds. claimed to be in possession of Mst. Saeeda Lali was still undisposed of. He however, rejected the prayer of Mst. Saeeda Lali for its transfer to her and directed that the same may be disposed of through public auction. Against the order of Deputy Settlement Commissioner, dated 19‑2‑1968 both Mst. Saeeda Lali and Feroz Ahmed filed separate appeals which were dismissed by the Additional Settlement Commissioner on 27‑9‑1968. Against the above order of Additional Settlement Commissioner both Feroz Ahmed and Mst. Saeeda Lali submitted revision petitions before the Settlement Commissioner, which were dismissed on 22‑5‑1969. Feroz Ahmed did not challenge the revisional order dated 22‑5‑1969 any further and therefore, it attained finality. It however, appears that the plot measuring 500 sq. yds. of GRE 81, which was ordered to be put to public auction as a result of the above proceedings could not be auctioned for the reasons that Mst. Saeeda Lali made some representation to the Chief Settlement Commissioner for considering her request for transfer of the plot to her on the basis of her possession. It is an admitted position that ejectment proceedings instituted by Feroz Ahmed against Mst. Saeeda Lali became infructuous as a result of the order passed by the Settlement Authorities, directing disposal of plot in her possession through public auction. In the meantime, MLR‑86 was promulgated on 10th August, 1971 and after its promulgation 'Mst. Saeeda Lali made a fresh application to the Additional Settlement Commissioner for transfer of 500 sq. yds. of land under paragraph 4 of the Regulation on the basis of her possession. In her application she impleaded both Feroz Ahmed and Abdul Sattar as respondents. It appears that Feroz Ahmed made a request to the Additional Settlement Commissioner/ Authorised Settlement Commissioner for transfer of 500 sq. yds. of Plot No. GRE 81 to him on the ground that both Mst. Saeeda Lali and Abdul Sattar were his tenants and therefore, he should be treated in the constructive possession of the plot under MLR‑

86. The Additional Settlement Commissioner/ Authorised Settlement Commissioner, however, rejected the prayer of Feroz Ahmed and ordered for transfer of 253 sq. yds. to Mst. Saeeda Lali and remaining 247 sq. yds. to Abdul Sattar under MLR‑86 on the basis of their actual and physical possession, on 10‑4‑1974. This order again was not challenged by .Feroz Ahmed any further. The Additional Settlement Commissioner/ Authorised Officer while transferring an area of 247 sq. yds. to Abdul Sattar made following observations in his order, dated 10‑4‑1974:‑ "Mr. Abdul Sattar respondent No.2 has prayed that he may be allowed right of passage from the available area for entering in his house because he is having strained relations with respondent No.l. Deputy Settlement Commissioner may arrange a passage to him as per rules in presence of parties. The request of respondent No. l for transfer of 500 sq. yds. of the remaining area of the plot is rejected." It appears that. pursuant to the above direction of Additional Settlement Commissioner, dated 10‑4‑1974 the case was taken up by the Deputy Settlement Commissioner (1), Karachi, who by his order, dated 9‑5‑1974 declined to give any relief to Abdul Sattar on the ground that granting of such relief would amount to interfering with the transfer order passed by the Additional Settlement Commissioner. The order, dated 9‑5‑1974 passed by the Deputy Settlement Commissioner was challenged by Abdul Sattar before the Settlement Commissioner, Karachi, who by his order, dated 3‑5‑1976 remanded the case back to the Deputy Settlement Commissioner 'for complying with the direction of Additional Settlement Commissioner/ Authorised Settlement Commissioner, contained in his order, dated 10‑4‑1974. After remand of the case by the Settlement Commissioner as aforesaid, the case was again taken up by another Deputy Settlement Commissioner who by his order, dated 30th September, 1975 took the view that as the right claimed by Abdul Sattar relates to right of way and ease mentary right the proper course for the parties in the circumstances is to approach the civil Court for redress. Abdul Sattar has challenged the above order of Deputy Settlement Commissioner in Petition No. 55/76. Feroz Ahmed, who cannot be treated as an aggrieved person from the above order passed by the Deputy Settlement Commissioner on 30th September, 1975 in the light of the above‑stated facts, also filed Petition No. 102/76 on 17‑3‑1976 challenging the orders, dated 10‑4‑1974 passed by Additional Settlement Commissioner/ Authorised Settlement Commissioner and 30th September, 1975 passed by Deputy Settlement Commissioner.

3. Mr. Akhtar Mahmood, learned counsel for Feroz Ahmed has raised the following contentions before me in support of Petition No. 102/76:‑ (i) That the order, dated 19‑2‑1968 passed by Deputy Settlement Commissioner directing sale by auction of 500 sq. yds. of Plot GRE 81 is an order without jurisdiction as the proceedings were initiated on a Misc. application filed by Mst. Saeeda Lab after issuance of P.T.D. in favour of Feroz Ahmed. (ii) That the transfer documents issued to Feroz Ahmed show that the entire evacuee interest in the Plot No. GRE 81 was transferred to the petitioner and therefore, the exclusion of an area of 500 sq. yds. of this plot from the transfer of Feroz Ahmed was without jurisdiction. (iii) That the order, dated 10‑4‑1974 passed by the Additional Settlement Commissioner (Jud.)/Authorised Settlement Commissioner was a void order as the said Officer was not competent to pass an order of transfer under MLR‑86. (iv) The order, dated 10‑4‑1974 having been passed by an Officer who passed the order, dated 19‑2‑1968 was otherwise bad in law.

4. It may be mentioned here that with regard to order, dated 30‑9‑1975 challenged in Petition No. 102/76 Mr. Akht ar Mahmood frankly stated that this order did not affect Feroz Ahmed adversely and as such no contention was advanced by the learned counsel against this order. After hearing Mr. Akhtar Mahmood Khan at length I am of the view that none of the above contentions have any merit. From the above narration of the facts it is quite clear that although plot number in the transfer documents issued to Feroz Ahmed was mentioned as GRE 81 but the area transferred to him was shown both in the P.T.O. and the P.T.D. as 1,200 sq. yds. It is, therefore, quite clear that the excess area of 500 sq. yds. of Plot No. GRE 81 was never transferred to Feroz Ahmed. In these circumstances on 19‑2‑1968 when the Deputy Settlement Commissioner considered the application of Mst. Saeeda Lali and ordered for disposal of excess area of 500 sq. yds. of GRE 81 by public auction, he neither reopened the case of Feroz Ahmed nor interfered with the transfer documents issued in his favour. I, therefore, find no substance in the contention of the learned counsel that the proceedings having been initiated on a Misc. application of Mst. Saeeda Lali were incompetent in law and as such the' order, dated 19‑2‑1968 was an order without jurisdiction. Apart from it Feroz Ahmed could not be allowed to challenge the order, dated 19‑2‑1968 in this petition. Feroz Ahmed challenged the order, dated 19‑2‑1968 first in appeal before Additional Settlement Commissioner and then in revision before the Settlement Commissioner without any success. The order of Settlement Commissioner on the revision of Feroz Ahmed was passed on 22‑5‑1969, with the result the order, dated 19‑2‑1968 passed Deputy Settlement Commissioner stood merged in the order of Settlement Commissioner, dated 22‑5‑1969. This order of Settlement Commissioner attained finality in law as it was not challenged any further by Feroz Ahmed. In the present petition filed by Feroz Ahmed neither the order, dated 22‑5‑1969 is challenged nor Settlement Commissioner is party. Even otherwise, Feroz Ahmed could not challenge the order, dated 22‑5‑1969 in the present petition which was filed after about six years.

5. The next order which is challenged by Feroz Ahmed in Petition No.102/76 is, dated 10‑4‑1974 passed by Additional Settlement Commissioner (Jud.)/Authorised Settlement Commissioner. The learned counsel for Feroz Ahmed has contended that the Additional Settlement Commissioner (Jud.) could not pass the order, dated 10‑4‑1974 in view of the definition of Chief Settlement Commissioner given in section 2 (b) of MLR‑86 which reads as under:‑ "2(b) "Chief Settlement Commissioner" means the Chief Settlement Commissioner appointed under subsection (1) of section 9 of the Act, and includes any other officer not below the rank of Settlement Commissioner authorised by him in this behalf." No doubt under paragraph 4 of MLR‑86 the order for transfer of land to a person in unauthorised possession of it can be made only by the Chief Settlement Commissioner, which by virtue of above‑quoted definition also included any other officer not below the rank of Settlement Commissioner, authorised by the Chief Settlement Commissioner, but there is nothing on record to show that the officer who passed the order, dated 10‑4‑1974 was not so authorised. On the contrary, the order, dated 10‑4‑1974 shows that it was passed by that officer in his capacity as Authorised Settlement Commissioner. In addition to it there are other weighty reasons for not allowing Feroz Ahmed to agitate in this petition against the order, dated 10‑4‑1974. Feroz Ahmed himself applied for transfer of plot measuring 500 sq. yds. before the Additional Settlement Commissioner under MLR‑86 and as such having invoked the jurisdiction of that officer, he cannot be allowed to challenge the said order on the ground of absence of jurisdiction; secondly by order, dated 10‑4‑1974 the Authorised Settlement Commissioner rejected the request of Feroz Ahmed to transfer him the 500 sq. yds. of Plot No. GRE‑81 and this order is challenged in Petition No. 102/76 by Feroz Ahmed alongwith order of Deputy Settlement Commissioner dated 30‑9‑1975 after about two years. It is not disputed by the learned counsel for Feroz Ahmed that neither Feroz Ahmed was party to the proceedings which culminated in the order, dated ;30‑9‑1975, nor 4ie is affected by the order, dated 30‑9‑1975. No explanation is offered by Feroz Ahmed for not challenging the order, dated 1U‑4‑1974 for about two years. In these circumstances Feroz Ahmed cannot be allowed to agitate against the order, dated 10‑4‑1974 which attained finality against him with the passage of time. I am therefore, not in,Ained to examine the legality of the order, dated 10‑4‑1974 at the instance of Feroz Ahmed. In view of the above discussion I find no substance in Petition No.102/76 which is accordingly dismissed but in the circumstances of the case leave the parties' to bear their respective costs.

6. I will now take up Petition No. 55/76 filed by Abdul Sattar. In this petition Abdul Sattar has challenged the order, dated 30‑9‑1975 passed by Deputy Settlement Commissioner. By the impugned order the Deputy Settlement Commissioner, directed the parties to have resort to civil Court for settling their alleged right of passage and easement. Learned counsel for Abdul. Sattar relied on the case of Abdul Majid v. Chief Settlement ‑Commissioner P L D 1968 S C 154 to support his contention that the Settlement Authorities while transferring a property to person under the provisions of Displaced Persons Act should also keep in mind that the transferred property is capable of enjoyment beneficially having regard to right of easement appertaining to it. This case is hardly of any assistance to the learned counsel. In the above‑cited case the Court was interpreting the expression "unit" in the first proviso to clauses (4) and (12) of section 2 of Act 28 of 1958, which defined 'residential unit' and 'business unit' in a building; while in the present case Abdul Sattar was transferred an open plot and he claimed right of passage on the basis of an alleged 'prescriptive' right. In these circumstances, the direction contained in the order of Deputy C Settlement Commissioner, dated 30‑9‑1975 asking the parties to have resort to a competent Court of law for settling their easementry rights was unexceptionable. I accordingly also dismiss Petition No. 55/76 but leave the parties to bear their respective costs. A. A. Petition dismissed.