1987 PLP 1441 (SCMR)

NASIM HASAN SHAH, J.‑‑ The bone of contention in this case is one of the residential units in a composit building which consists of four units (two residential and two commercial), situate in Faisalabad. The Deputy Settlement Commissioner on 23rd January, 1960 transferred one residential unit, consisting of 8 rooms, to Rao Jamshed Ali Khan (predecessor‑in‑interest of the petitioners herein) and the other residential unit‑‑consisting of 2 rooms, to Nek Muhammad (predecessor‑in‑interest of respondents Nos.l to 4 herein). So for as the commercial units are concerned although the question of their disposal is not in question before us but it may be mentioned that one shop was transferred to Muhammad Amin and the other remained available for disposal, as it was in possession of a local. Rao Jamshed Ali challenged the order of transfer made by the Deputy Settlement Commissioner in favour of Nek Muhammad before the Additional Settlement Commissioner without success. He then approached the Settlement Commissioner in revision where he failed. A second revision filed before the Chief Settlement Commissioner also remained unsuceessfull. He then approached the High Court in writ jurisdiction. In the meanwhile, Nek Muhammad obtained a P.T.D. on 26‑6‑1963 after paying the entire price of the unit transferred to him. The writ petition filed by Rao Jamshed Ali was also subsequently dismissed on 22‑1‑1974. However, he continued his efforts to oust Nek Muhammad from the residential unit and took up another line of attack, namely, that the claim of Nek Muhammad was bogus. This approach succeeded and Mr. Ghulam Baqir Ali Khan, Additional Commissioner with powers of the Claims Commissioner, by his order dated 19‑11‑1975, found that the plea was correct and held that the claim was not verified lawfully and ordered its cancellation. After cancellation of the claim Mst. Bilqis widow of Rao Jamshed Ali filed an application on 20‑3‑1976 before the Member, Board of Revenue (who was also acting as Chief Settlement Commissioner) that since the claim of Nek Muhammad had been cancelled the transfer of the residential unit in his favour should also be cancelled. Mr. Saghir Ahmad Warsi, Deputy Settlement Commissioner Faisalabad, in pursuance of the direction issued to him by the Member, Board of Revenue/Chief Settlement Commissioner, Punjab, heard this complaint any by his order dated 15‑11‑1977 held that as Nek Muhammad was not a claimant the transfer order passed in his favour was bad in law. In the result, the order transferring the unit in his favour was set aside and so also the P.T.D. issued to him, cancelled. It was further ordered that this portion be transferred to Rao Jamshed Ali. The order of the Deputy Settlement Commissioner dated 15‑11‑1977 was challenged by a writ petition before the Lahore High Court and the question which fell for decision before the High Court was whether the Deputy Settlement Commissioner, whose office ceased to exist on 1‑7‑1974 by the repeal of Displaced Persons (Compensation & Rehabilitation) Act, 1958 by Act XIV of 1975 could assume the jurisdiction, on the directions of the Chief Settlement Commissioner, to re‑open the transfer in favour of Nek Muhammad which stood finalized in all respects under the repealed Act. The learned Judge in the High Court hearing the writ petition held that this could not be done and the view expressed by the Deputy Settlement Commissioner that he had the jurisdiction to decide the matter as this was a "pending case" and was covered by the saving provisions of the Repealed Act was erroneous. The saving provision, contained in sub‑section (') of Section 2 of the Evacuee Property & Displaced Persons Laws Repeal) Act 1975 reads as follows:‑ "2(2). Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed, there under shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid." (Underlining is ours) The bare reading of this provision shows that it is only proceedings which immediately before the repeal of the Act i.e. before 1‑7‑1974 were pending before any of the authorities appointed under the Act of 1958 which could be taken up for final disposal by the notified officers and not a proceedings which was not pending before them on 1‑7‑1974. The application, whereby the instant case was re‑opened was itself made for the first time on 20‑3‑1976. The Deputy Settlement Commissioner was not, therefore, competent to treat this case as a "pending proceedings" when it had stood finally disposed of by the orders of the Settlement authorities in 1973, which orders were not interfered with even by the High Court as the writ petition filed by Rao Jamshed Ali (W.P.No.747‑R/66) was ultimately dismissed. Even otherwise this is not a fit case for interference in the discretionary jurisdiction of this Court to grant leave to appeal. The respondents, even if non‑claimants, are displaced persons and have been occupying the premises for decades and we are not inclined to displace them at this stage at the behest of another refugee family who has already been transferred a much larger unit. The upshot is that besides agreeing with the learned Single Judge that the order dated 15‑11‑1977 passed by the Deputy Settlement Commissioner was contrary to law and was. passed without lawful authority and no interference with his order is called for on this account, this is not at all a fit case for exercise of this Court's discretionary jurisdiction to grant leave. This petition fails and is dismissed hereby. M . I / B‑10 / S Petition dismissed.