1986 PLP 759 (SCMR)

NASIM HASSAN SHAH, J.‑‑The dispute in this case relates to the transfer of an evacuee double‑storeyed house consisting of five rooms situated in Tulamba Town, Tehsil Khanewal, District. Multan. The first floor consisting of two rooms in the occupation of Noor Muhammad (respondent herein), who is a claimant. The rest of the building consisting of three rooms and a courtyard on the ground-floor is in the occupation of Barkat Ali (petitioner herein), who is a non‑claimant. Both had applied for the transfer of the house under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, but these applications for transfer were dealt with rather haphazardly. We find from the record placed before us that in the first instance an order was passed by a Deputy Settlement Commissioner, on 10‑12‑1959, whereby the entire house was transferred to Barkat Ali (petitioner herein) on his N. C. H. form. However, on the record there also exists another order, passed, on 5‑5‑1960 by Mr. Naeemuddin, Assistant Settlement Commissioner, according to which Barkat Ali, petitioner herein, was to get the lower portion of the house in his occupation, while Noor Muhammad, the claimant (respondent herein), was found eligible to the transfer of the upper portion of the house "in his authorized possession". However, there is yet another order passed by the Deputy Settlement Commissioner (Mr. K.S.S. Tirmzi) on 20‑7‑1960 which is mutually self‑contradictory. In this order it is said : ‑ "The house is not divisible. I uphold the order of Mr. Moinuddin Ali Khan Assistant Settlement Commissioner, dated 5‑5‑1960. The entire house is, therefore, transferred in favour of Noor Muhammad son of Ahmad Khan. Form submitted by Barkat Ali is hereby rejected." (Underlining is ours).

2. A perusal of the order of the Assistant Settlement Commissioner, dated 5‑5‑1960, which ostensibly has been upheld, however, was to the effect that the house be divided and both the occupants transferred the portions in their occupation. However, if, as the present order states that the house is not divisible and the entire house is transferred to Noor Muhammad the claimant the two orders are inconsistent because the letter order dated 20-7-1960 does not uphold the order of the Assistant Settlement Commissioner dated 5-5-1960 as it purports to say. Furthermore the earlier order dated 5-5-1960 which has been placed on the record has been passed by Mr. Naimuddin Assistant Settlement Commissioner and not by Mr. Moinuddin Ali Khan Assistant Settlement Commissioner as mentioned in the order of the Deputy Settlement Commissioner dated 20-7-1960.

3. Be that as it may, the petitioner challenged the order of the Deputy Settlement Commissioner, dated 20‑7‑1960 by filing an appeal before the Additional Settlement Commissioner, Multan, which was dismissed. He then approached the learned Settlement, Commissioner by a revision which, too, failed. He then filed a writ petition before the High Court of West Pakistan, Lahore but the same was dismissed by the learned Chief Justice, on 6‑6‑1969. An L.P.A. preferred against this too was dismissed. Hence this petition for leave to Appeal in this Court.

4. The main point urged by the learned counsel for the petitioner is that the Deputy Settlement Commissioner's order, dated 20‑7‑1960 was passed in review of the earlier order of another Deputy Settlement Commissioner, dated 10‑12‑1959. This argument was met by the learned Chief Justice by observing that the order, dated 12‑12‑1959 was an ex parte order which did not preclude the Deputy Settlement Commissioner from passing afresh order, on 20‑7‑1960.

5. This reasoning is correct so far as it goes but we find that in the order, dated 20‑7‑1960 the learned Deputy Settlement Commissioner observes that he is upholding the order of the Assistant Settlement Commissioner, dated 5‑5‑1960, but the said order does not, in effect, appear to have actually uphold the order of the Deputy Settlement Commissioner, dated 20‑7‑1960.

6. This case, therefore, requires further consideration. Leave is, accordingly, granted. Security shall be furnished in the sum of Rs.2,500.

7. Status quo, as obtaining today, to continue. As this is a settlement matter, let the appeal arising out of this petition be fixed for hearing at a very early date. M.I. Leave granted.