1994 PLP 1235 (MLD)

This case has a chequered history as this is the fourth time that the dispute as to transfer of evacuee property between the parties is being agitated before this Court. The necessary facts briefly stated are that on start of settlement operations matter of transfer of evacuee property bearing Nos.26, 28, 28A- and 177/181, RA. Bazar, Lahore was taken up together by the Assistant Settlement Commissioner who vide order dated 16th February, 1960, holding that (i) property No.177 was a Chaubara transferred the same to Ali Akbar, a local, (ii) two shops below Chaubara (No.177) were treated as Property Nos.28 and 28A and transferred to Nizam Din, (iii) the other part of Chaubara No. 177 in possession of Khurshid Ali Khan and shop beneath it in occupation of Fakharuddin local was treated as property No.26 and transferred to Khurshid Ali Khan. The residential portion at the back of Shop No.26 was found in occupation of Shabrati (the predecessor-in-interest of Mst. Zainab etc. present petitioners), Akbar, Mst. Batool Begum (respondent No.2), widow of Taj Din and Ghulam Rasool. This back residential portion was ordered to be transferred to Shabrati. It is pertinent to note that Taj Din had not filed a form but Mst. Batool Begum, his widow, during visit of the Assistant Settlement Commissioner did make statement that portion in her possession be transferred to her. The Assistant Settlement Commissioner, however, did not require her to submit the form. It is also pertinent to note that Khurshid Ali Khan, Shabrati and Mst. Batool Begum are claimants.

2. Khurshid Ali Khan, respondent No.1, challenged the order dated 16-2-1960 in appeal which was disposed of vide order dated 26-2-1970 with the net result that residential portions were divided between the occupants. This order was then challenged by Shabrati and Khurshid Ali Khan by filing Writ Petitions Nos.1777/R of 1963 and 782/R of 1965 respectively. These petitions were accepted and the matter was remanded for fresh decision vide judgment dated 6-10-1967. The pertinent observations made for the purpose of remand are reproduced below:

"The Settlement Authorities have no jurisdiction under the law to mix up the properties of two different evacuees for the purposes of transfer or to mix up the two properties of one evacuee and make it as one residential unit or a commercial-cum-residential unit." The case was thus remanded for fresh decision on merits after spot inspection. The matter so remanded was then disposed of vide order dated 26-6-1971 by the then Additional Settlement Commissioner. This order was challenged by Khurshid Ali Khan, respondent No.1 by filing Writ Petition No.1060/R of 1973. The same was accepted vide judgment dated 31-3-1980 and the matter was again remanded for passing order in compliance with the order earlier passed by this Court on 6-10-1967. During remand proceedings Mst. Batool Begum submitted an application for being impleaded as a party to the proceedings claiming that she being a claimant allottee in possession is entitled to transfer of portion in her possession. The Settlement Commissioner accepted this application and impleaded Mst. Batool Begum as a party vide order dated 25-11-1981. Mst. Zainab Bibi and others feeling aggrieved of the order dated 25-11-1981, filed Writ Petition No.678/R of 1981. This petition was got dismissed as withdrawn by reserving the right to reagitate the matter if ultimately a final decision is given by the Settlement Authority against the petitioners.

3. The remand matter was then decided by the Settlement Commissioner vide order dated 28-6-1982. Mst. Zainab Bibi and other petitioners were transferred ground floor while Mst. Batool Begum was transferred the first floor of Property No.177/181. Mst. Zainab Bibi and others, present petitioners, challenged this order in Writ Petition No. 342/R of 1982. This petition was again accepted vide judgment dated 2-3-1986 and the matter was remanded to the notified officer for fresh decision keeping in view the directions made in the judgments dated 6-10-1967 and 31-3-1980. It may be noted that in the writ petition order dated 25-11-1981 was not specifically challenged. Even in the order dated 2-3-1986 the question of legality or otherwise of impleading Mst. Batool Begum was not at all touched.

4. The notified officer again took up the matter in remand and disposed it vide order dated 12-2-1987. The properties were transferred as under:

(i) Khurshid Ali Khan was given Property No.26 marked in red colour and delineated as A, B, E and F in the site plan Exh.D/1. (ii) Mst. Zainab Bibi and others, petitioners were transferred ground floor while Mst. Batool Begum was transferred first floor. The property No.177/181 was shown in blue colour and was delineated as F, G, H and D. (iii) Property Nos.28 and 28A was shown in green colour and delineated as A, B, C and D in the plan Exh.D/1. This property so demarcated was held to be available property to be auctioned in accordance with law. It is also not disputed that Property No.26 as well as No.177/181 were owned by Mahader Pradash evacuee owner while Property Nos.28 and 28A were owned by Sheeka Ram and Dhana Mall, evacuee owners. Property Nos.28 and 28A as per the impugned order of the notified officer comprises of two shops, portion behind the shops where some structure existed earlier and the rooms. on the first floor above the shops. This portion lineated in green colour and marked as A, B, C and D was declared as available property. The peculiar feature of properties 26 and 177/181 owned by Mahader Prasad is that both are so intermingled that their separate entity in view of the situation and constructional design prevailing at the site cannot be maintained. There is no independent approach to the rooms (accommodation) which the parties jointly claim as property No.26. It is case of all the parties that for reaching portion called property No. 26, one has to pass through the Deori, the courtyard and then the Verandah of Property No.177/181 and for reaching the first floor of portion called Property No. 26, a wooden staircase placed in the Verandah of Property No. 177/181 is to be used. It was in view of the aforenoted situation prevailing at the site that the notified officer observed that the construction on the spot is not in accordance with the description given in the proposed and sanctioned plans and so he was compelled to ascertain of his own the boundaries on the basis of material available and the spot inspection.

5. As regards the extent and limit of each set of properties, learned counsel for the petitioners admitted that Property No.26 and No.177/181 stand intermingled at the spot and one is not independent of the other as Property No.26 has no independent access and can be reached through Property No.177/181. He, however, claimed that the rooms which existed on the ground floor behind the shops described as Property Nos.28 and 28A and now the vacant site, are part of Property No.177/181. Nothing to support this plea was referred to. There is no merit in this plea as evidently no portion of property owned by another evacuee owner can be claimed as part of Property No.177/181 owned by some other evacuee owner. The property declared as Property Nos.28 and 28A and as `available property' cannot be claimed by the petitioners. Obviously the petitioners cannot claim transfer of more than one residential unit and that residential unit cannot extend to the property owned by another evacuee owner.

6. Now the questions are whether transfer of Property Nos.26 and 177/181 suffers from any jurisdictional error; whether the transfer as directed to the respondents is violative of the direction made in the previous remand orders and whether transfer to Mst. Batool Begum is illegal.

7. Learned counsel laid much emphasis on the plea that Mst. Batool Begum was illegally allowed to join the remand proceedings and that she could not be allowed to submit a form so as to seek transfer of the portion in her possession. As regards transfer of Property No.26 to Khurshid Ali Khan, respondent, no valid objection can be taken as this property has been assigned separate number since its construction, and it is in occupation of Khurshid Ali Khan who is a claimant like Shabrati, the predecessor-in-interest of the petitioners. The extent of Property No.26 in the circumstances and the situation prevailing at the spot, had to be determined by the notified officer and by so doing he has in fact complied with the remand order. The petitioners cannot lay claim on this property in law or in equity.

8. Now we are left with property demarcated as No.177/181. The ground floor of this property has been transferred to the petitioners while the first floor has been transferred to Mst. Batool Begum. They are admittedly in possession of their respective portions now declared independent units. Mr. Ahmad Saeed Kirmani, Advocate, learned counsel for the petitioners argued that Mst. Batool Begum is not entitled to seek transfer of the first floor of this property as firstly she did not file any form under Settlement Scheme No.1, secondly she got herself impleaded in the remand proceedings illegally. According to him she could not be impleaded as the matter was remanded by the High Court between the then parties to the proceedings. It was argued that had she not been impleaded vide order dated 25-11-1981, in the proceedings remanded second time by the High Court the petitioners would have been the only applicants for transfer of the said property which could then be transferred to them in its entirety. The relevant facts which were not controverted as regards the contest between the aforesaid two are that Mst. Batool Begum had, during the very first visit of the property by the Assistant Settlement Commissioner, in February, 1960, had expressed her desire to obtain transfer in her favour of the property in question. The Displaced Persons (Compensation and Rehabilitation), Act, 1958, enjoins the Deputy Settlement Commissioner to determine the entitlement of all persons in possession after associating them in inquiry and a person desirous to have the property transferred in his possession can file form during such inquiry. See Syed Muhammad Saqlain v. Muhammad Amir PLD 1968 Lah.

157. The l Assistant Settlement Commissioner before whom such desire was, expressed by Mst. Batool Begum should have in fairness got the form filed by her there and then. In any case she, it was accepted, filed a form later on but it is said that the said form was under Settlement Scheme NO.VIII and as such said form cannot form basis of transfer of the property as the matter was being dealt with under Settlement Scheme No. I. This technical objection at this stage cannot be given weight as the authorities should have required the respondent, who is a Pardanashin lady, to submit her application in the requisite form. The other aspect of the matter is that Mst. Batool Begum is also a claimant in possession since 1947 and it is too late now to refuse transfer of the portion in possession to a claimant on technical around.

9. There is yet another formidable hurdle in the way of the petitioners. Mst. Batool Begum was impleaded as a party to the proceedings by the Settlement Commissioner vide order dated 25-11-1981. This order was challenged by the petitioners by filing W.P. 678-R-81, which was however, got dismissed as withdrawn though reserving a right to challenge the final order, if necessary. The final order in the proceedings was passed by the Settlement Commissioner on 28-6-1982, transferring the property. This order was assailed by the petitioners by filing W.P. 342-R-82. The prayer made in this petition reads as follows:

"It is prayed that the impugned order passed by the Settlement Commissioner, Lahore Division, Lahore, dated 28-6-1982 be declared as without lawful authority, the same be quashed and appropriate direction be issued to the said authority to consider the entitlement of the petitioners and the respondent No.1 (Khurshid Ali Khan) only in accordance with the directions of this honourable Court dated 6-10-1967 and 31-3-1980 and to transfer the properties in dispute in accordance with the law." In this petition the impleadment of Mst. Batool Begum, respondent No.2, and transfer of a portion to her of House No.177/181 was also challenged. This petition was disposed of vide judgment dated 2-3-1986. The impugned order dated 28-6-1982 was declared to be without lawful authority and of no legal effect and the case was remanded to the Member, Board of Revenue (Settlement) either to dispose it of himself or to entrust it to a notified officer with a further direction to the notified officer to go into the question of the determination of the ownership of different evacuees and to determine the extent thereof after spot inspection and then to decide the rights of the parties in the light of the two previous remand orders of this Court. It is, therefore, apparent that the prayer to. consider the entitlement of the petitioners and Khurshid Ali Khan, respondent No. 1, only was refused. Perusal of the order would further show that the impleadment of Mst. Batool Begum in the remand proceedings was not even remotely referred to therein. Had the question of impleadment been argued before the learned Judge the same would have found mention in the judgment. The petitioners, it appears, abandoned the said objection before the learned Judge. In these circumstances the petitioners cannot agitate the matter as the principle of estoppel is fully applicable.

10. Be that as it may Mst. Batool Begum is admittedly a claimant a portion in her possession has been transferred to her by treating the same as an independent unit. The petitioners as such cannot lay claim over a second independent unit. The net result of the impugned order is that all the claimants have been transferred the units in their respective occupation. This is eminent and just order and one claimant should not be allowed to elbow out the other claimant. For the reasons given above I am pursuaded to intervene in exercise of extraordinary Constitutional jurisdiction which is essentially a discretionary jurisdiction. This petition, therefore, fails and is dismissed. The parties are left to bear their own cost. AA./Z-108/L Petition dismissed.