1992 PLP 529 (CLC)

‑‑‑‑Sched., para. 6‑‑‑Disposal of house by public auction‑‑‑Essentials‑‑‑Evacuee house could be disposed of by public auction under para. 6 of Sched. to Act XXVIII of 1958, only if no person had claimed the same under any of the earlier paragraphs i.e. non‑claimant in possession, local in possession etc.‑‑ Such property could not be put to auction without determining claims of a person entitled to its transfer under para. 1 of the Sched.‑‑‑Settlement Authorities while disposing of house in question, having overlooked condition precedent, their proceedings were rendered void being contrary to law and in excess of jurisdiction. Azimullah v. Chief Settlement Commissioner 1968 SCMR 175 rel. (d) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑ ‑‑‑‑Sched., para. 6‑‑‑Transferee, a claimant displaced person from Jammu and Kashmir; house in occupation of such person could not be given to any other person. Muhammad Sultan Mir and others v. M. Yousaf Hussain Dada and others 1984 SCMR 533 rel. (e) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑ ‑‑‑‑Ss. 10 & 11‑‑‑P.T.O. issued to claimant in respect of whole house ‑‑‑P.T.O. issued in favour of predecessor‑in‑interest of petitioners having never been set aside in lawful proceedings after hearing him and being in respect of whole house, same continued to hold good for the whole house. (f) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)

Ss. 10 & 11

Constitution of Pakistan (1973), Art.199‑‑‑Remand of case‑‑ Conditions for remand ‑‑‑Settlement Authorities were directed to examine question of payment of transfer price and in case of shortfall, all heirs of transferee of whole house were to undertake to pay the same after associating them and giving them opportunity to substantiate their version of payment‑‑ Legal heirs would be issued transfer order within specified time after fulfilment of requirements of remand order‑‑‑Property was to be demarcated in presence of legal heirs of transferee. (g) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)... ‑‑‑‑Ss 10 & 11‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Allotment of portion of house to third party after P.T.O. which had been issued in favour of petitioners predecessor in interest, without hearing him and at his back was declared to be void‑‑Petitioners' predecessor‑in‑interest was deemed to be transferee of the whole house in question. Syed Iqbal Haider Zaidi and Mussadaq Hussain for Petitioner. Sadaq Hayat Khan Lodhi for Respondent. Dates of hearing:16th, 17th and 19th July. 1990: This is a writ petition filed by the legal representatives of late Mr. Umar Hayat. who was transferred evacuee bungalow in Mohallah Chah Pachwara, Mozang. Lahore and a PTO had been issued in favour of the deceased for the full house on 15-1-1960.

2. The relevant facts are that after the issuance of the PTO, without assailing it in appeal, revision or review and behind the back of deceased Umar Hayat 2/3rd of the property was transferred to Mst. Nazir Begum. She could not enjoy it because the learned Settlement Commissioner found her to be not entitled to retain the property. Thereafter, the department placed. this 2/3rd portion in the list for disposal through auction.

3. After hearing the learned counsel for the petitioner and the Settlement Department I do not think there is any need to further go into the unnecessary details for the simple reason that a clear pictures has emerged on the face of the record. I had, in this case, asked the Member. Board of Revenue (S&R) to depute a counsel to defend and Mr. Sadiq Havat Khan Lodhi, Advocate, has appeared with the record. He is unable to deny the factual position that a P.T.O. for the whole property was issued in favour of late Umar Hayat on 15‑1‑1960. He is also in no position to deny the fact that subsequent transfer in favour of Mst. Nazir Begum was made behind the back of the P.T.O. holder in respect of 2/3rd of the same property. This illegal exercise purportedly left 1/3rd portion for Umar Hayat. The reason for taking back this portion from the lady as recorded by the Settlement Commissioner in his revisional order was that she was nowhere to be found in possession of the house or any portion thereof. It was in these set of circumstances that 2/3rd portion was cancelled and its disposal through auction ordered.

4. I have reached the irresistible conclusion that the impugned orders are liable to be declared void and without lawful authority, inter alia, for the following reasons:‑ (a) That once an order of determining the entitlement of the predecessor -in‑interest late Umar Hayat was passed and P.T.O. to respect of the whole house had been issued in his favour, his rights could not be put to peril in collateral proceedings. The determination in favour of the petitioner had thus attained finality in law. It was, therefore, not open for the Settlement Commissioner to go behind these proceedings. (b) A residential premises called a house is covered by section 2(4) of the Displaced Persons (S&R) Act, 1958. Its 1st proviso empowers the Settlement Authorities to declare a house which consists of more than one residential unit and is in possession of several persons to be more than one house through division. In case where the conditions precedent for the exercise of jurisdiction are found to exist or shown to have been fulfilled, only then such a power can be exercised, otherwise not (c) For the purpose of exercising the power of division the residential premises must consist of more than one unit which should be in possession of more than one persons. These preconditions not having been fulfilled factually or in law there was no jurisdiction vested in Settlement Department to slice away a portion from the petitioner's property. In fact no such order is shown to have been lawfully passed by any functionary under the settlement laws. (d) That as laid down by the Supreme Court in the case of Azimullah v. Chief Settlement Commissioner (1968 SCMR 175) evacuee house can be disposed of by public auction under para. 6 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, only if no person claims it under any of the earlier paragraphs. It was further ruled that property cannot be put to auction without determining claim of a person entitled to its transfer under paragraph 1 of the Schedule. The dictum of the Supreme Court appears to have been completely overlooked by the statutory functionaries in the course of the impugned proceedings which are thus rendered void being contrary to law and in excess of jurisdiction.

5. In the present case the transferee was a claimant displaced person from Jammu and Kashmir. Therefore, under the law houses in occupation of displaced persons from occupied Jammu and Kashmir could not be given to any other person. Reference may be made to the decision of the Supreme Court reported in Muhammad Sultan Mir etc. v. M. Yousaf Hussain Dada etc. 1984 SCMR 533.

6. The P.T.O. never having been set aside in lawful proceedings after hearing the transferee, it continued to hold good for the whole house.

7. At this stage, Mr. Sadiq Hayat Khan Lodhi, learned counsel for the Settlement Department, expressed his concern regarding the compensation pool lest there may not be a shortfall in payment of the price. It is being contended that the amount due has been paid. However, notwithstanding this contention, I direct the Settlement Department to examine the question of payment of transfer price and should there be a shortfall, the legal heirs of the transferee of the whole house undertake to pay the same. The case is, accordingly remanded to the Notified Officer for following purposes:‑‑ (i) He shall demarcate the property No.S‑VIII‑93‑S/20, Chah Pachwara, Mozang, Lahore, in the presence of the legal heirs of the petitioner. (ii) He will examine the question of payment of transfer price after associating the legal heirs of the petitioner and giving them proper opportunity to substantiate their version of payment. If some amount is legally worked out to be due, the legal heirs would pay the same. After fulfilment of these requirements the legal heirs of the petitioner will be issued a transfer order within six weeks on being furnished with a copy of this order.

8. The direction with respect to the time limit shall be faithfully complied with and a report of compliance submitted to the learned Registrar of this Court for information.

9. Learned counsel for the petitioner complies that it is a pity that a dispute of this nature has consumed a period of 32 years. He further complains that a civil suit as to the possession of the courtyard is pending in the Court of Mr. Shahid Naseer, learned Civil Judge, Lahore, and Allah knows when that would be decided.

10. I am minded to direct the learned District Judge, Lahore, to ensure that if necessary the case may be heard from day to day and disposed of without fail within next two months so that legal heirs of deceased educationist can live in peace and free from litigation.

11. The writ petition is hereby accepted and the impugned proceedings and orders are declared to be void and the petitioner Umar Hayat (now represented by legal heirs) is held to be the transferee of the whole house Nos‑VIII‑93‑S‑20, Chah Pachwara, Mozang, Lahore. There shall, however, be no order as to costs. AA./U‑64/L Petition accepted.