2002 PLP 290 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑This appeal, by leave of the Court, is directed against the judgment dated 4th March, 1977 and 2nd April, 1997 passed by Lahore High Court, Lahore, respectively.

2. Precisely stating facts of the case relevant for disposal of instant appeal are that the Deputy Settlement Commissioner‑Ill, Lahore in pursuance of Miscellaneous Application dated 25th August, 1975 instituted by Ghulam Sadiq son of Lal Din for transfer of the shop being portion of Property No./D/1058, situated in Sheesha Moti Bazar, Lahore. When this application was pending, appellant Sanaullah Bhutta also filed an application dated 22nd December, 1975 containing therein that Property No. D/ 1058 stands transferred to him and that Ghulam Sadiq manoeuvred to remove his transfer document from the file. He, therefore, requested that the proceedings taken on the application of Ghulam Sadiq be dropped and his form tiled by him be rejected. Both these applications were disposed of by Deputy Settlement Commissioner on 27th March, 1976. relevant para. therefrom is reproduced hereinbelow:‑ "From the facts stated above it is established that Mr. Sana Ullah was allowed to retain the entire property in dispute and hence the shop of this property, for the transfer which the applicants and their deceased father filed two Forms, is not available for disposal. Therefore their Forms are rejected."

2. Against the above order Ghulam Sadiq and his brothers namely Ghulam Hussain, Muhammad Akhtar and Muhammad Sadiq sons of late Lal Din filed a Writ Petition No.1276‑R/1976 alongwith Civil Miscellaneous Application No.1 / 1976, which was dismissed in absence of both the parties on 20th September, 1976. Subsequent thereto, statedly, a petition for restoration of writ petition leas filed, which was disposed of vide order dated 4th March, 1977. Relevant para. therefrom is reproduced hereinbelow:‑‑ "

6. The impugned order shall, therefore, be considered to have been, passed, only with regard to the house in possession of respondent No. 1 and not the shop. The competent authority shall consider the form of the petitioners with regard to the shop and transfer the same to them in accordance with law. The respondent No. 1 was present when the case was called. He went away to fetch his learned counsel but did not return; though I waited for him. However, as no one appeared to contest this petition, there will be no order as to costs. "

3. Against the abovementioned order appellant preferred ICA No.67/1977, which has been dismissed vide impugned order dated 2nd April, 1997 holding that ICA was not competent. Against this order, instant CPLA was filed and leave to appeal was granted by this Court to examine "whether ICA was competent or not on facts and circumstances of the case".

4. It may be noted that office has pointed out that if the appeal be treated against the judgment dated 4th March, 1977, passed by Lahore High Court, Lahore. in Writ Petition No.1276‑R/1976 then it becomes barred by time. However, if the same is treated to be against the order of ICA Bench dated 2nd April, 1997 then it is within time. This aspect of the case needs no detailed consideration because admittedly appellant, being aggrieved of the order dated 2nd April, 1997 passed by a learned Division Bench of Lahore High Court in ICA No.6711977, has instituted the instant appeal, therefore, it is treated within time.

5. Learned counsel for the appellant contended that as Late Ghulam Sadiq has instituted proceedings by submitting application on 25th August, 1975, after the repeal of Displaced Persons Compensation and Rehabilitation) Act, 1958, therefore, any order passed by the Authority notified under Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) (hereinafter referred to as "the Act") is not appealable or revisable, therefore, in terms of Law Reforms Ordinance (XII of 1972), ICA was competently filed by the appellant. Reliance in this behalf was placed on Mst. Wazir Begum and others v. Member, Board of Revenue/Chief Settlement Commissioner and others (2000 SCMR 989). Learned counsel appearing for respondent on having gone through the judgment in the case of Mst. Wazir Begum (ibid) conceded to the arguments of learned counsel for appellant. As the matter pertaining to allotment/transfer of a shop being portion of Property No.D/1058 is lingering on between the parties since long, therefore, we called upon them to argue the case on merits. However, during the course of arguments, we have noticed that there are certain important points including; one as to whether before the repeal of Evacuee Laws, disputed shop was transferred to appellant Sanaullah Bhutta. If not so, then whether after the repeal of Evacuee Laws, he had a legal right to oppose the application filed by Ghulam Sadiq and others, dated 25th August, 1975. Secondly, if appellant is not in possession of the property, whether on the basis of his application form, which was filed by him prior to the repeal of Evacuee Laws, he can now insist for the transfer of the shop in his favour. Thirdly, whether Ghulam Sadiq and others are claiming the transfer of the shop in their favour on the basis of possession of their father Lai Din who had statedly applied for its transfer on Form No. 1140/DSC‑II/213, dated 25th October, 1973 under Revised Settlement Scheme NO.VIII and if the application form filed by their father remained undecided then on the repeal of Evacuee Laws, his case can be treated as pending case in terms of section 2 of the Act, 1975 or an account of his possession (now through legal heirs) he would be entitled fir. its transfer under the Scheme for the Management and Disposal of Available Urban Properties promulgated by Government of the Punjab under Notification No.510‑POL/1976 issued under section 3(1), read with section 1 of the Act, 1975. if available. Therefore, we think it proper to remand this case to ICA Bench of Lahore High Court, Lahore for disposal of the case, expeditiously.

5. In view of above discussion, we area of the opinion that as this Court has already ruled in the case of Mst. Waziran (ibid) that ICA is competent in the matters pertaining to Evacuee Property after the repeal of Evacuee Laws, therefore, impugned order dated 2nd April, 1997 is set aside. Appeal is allowed and case is remanded to the learned High Court for disposal of ICA No.67/1977 filed by appellant Sanaullah Bhutta, in accordance with law, expeditiously as far as possible within the period of three months, after receipt hereof. No order as to costs. S.A.K./M.A.K./S‑143/S ???????? Case remanded.