1992 PLP 1243 (MLD)

The petitioner through this petition claimed the following reliefs:‑ (a) To declare that the impugned order, dated 30‑11‑1989 transferring the House No.G‑77‑2122, Goods Naka, Hyderabad, to the respondents Nos.2 and 3 as two units is illegal, void, against the law. (b) To declare that the property was a single Unit as is clear from Allotment Order, dated 13‑2‑1952 and LH Form, dated 7‑8‑1959 filed by respondent No.2 showing as one Unit and thus it was not transferable to the respondents Nos.2 and 3 and the PTO and PTD issued in 1962 are liable to be cancelled and of no value. (c) To declare that the order, dated 26‑2‑1989 restoring the revision application is illegal, against the law and of no value. (d) To declare that the house in question was rightly transferred to the petitioner in earmarking and he was issued appendix IX for Rs.10,800 on 3‑9‑1960 and the said amount was adjusted from Claim Book and then PTO was issued on 10‑9‑1960 which is subsisting and in force for all purposes. (e) Permanent injunction restraining and prohibiting from selling, transferring, mortgaging or alienating in question in any manner whatsoever. (f) Costs of the petition. (g) Any other relief that the hon'ble Court may deem fit and proper under the circumstances of the case. The facts leading to the filing of the above petition are that the petitioner is a displaced person having migrated from Jaipur State to Pakistan in the year 1947. House No.G/77‑2122 admeasuring 1206.02 square yards situated at Goods Naka, Hyderabad was an evacuee property and was owned by Moolchand Tharoomal. It is the case of the petitioner that it was assessed as one unit at GAR Rs.540 by the Assessing Authority at Hyderabad and one "Nawab Ahmed Ali Khan" was shown as the occupant of the said bungalow. Mir Wali Muhammad was the allottee of the said house and he was issued the allotment No.3272/1952, dated 12‑3‑1952 in respect of the said premises as one unit and he filed his LH Form for the transfer of the entire house as one unit and his form was registered at Serial No.1327, dated 7‑8‑1959 but his LH Form was rejected on 19‑9‑1959 on the ground that the value of the said house was more than Rs.10,000 and said Mir Wali Muhammad respondent No.2 being a local was not entitled for its transfer under the Settlement Laws. Mir Wali Muhammad had died during this period and respondents No.2(i) to (vii) are the legal heirs of said Mir Wali Muhammad. Ali Nawaz respondent No.3 also filed his LH Form on 10‑11‑1959. As the property was available for transfer, therefore it was included in earmarking list dated 16‑12‑1959 and it was drawn in favour of the petitioner on 30‑12‑1959 and after the drawing of the Lot Appendix IX, dated 3‑9‑1960 for Rs.10,800 was issued in favour of petitioner and after payment of the said amount by him, Appendix IX and PTO were issued in his favour on 3‑6‑1960 and 10‑9‑1960. respectively. It is the further case of the petitioner that respondent No.3 managed to file LH Form for transfer of the half house afterwards though his brother respondent No.2 had applied for entire house earlier as he was allottee of the whole house. The respondent No.3 was neither an allottee of the said premises nor he had paid. any rent in respect of the alleged portion. He has also neither any entitlement to file the application for transfer of the house as local as the entire house was allotted to Mir Wali Muhammad by virtue of allotment Order No.3272 of 1952 dated 12‑3‑1952 as one unit nor he was occupying the said house in his own right and thus it was rejected by the authorities as well. On rejection of those applications/LH Forms by the Assistant Settlement Commissioner, respondents filed appeals before the Deputy Settlement Commissioner who refused to treat the building as two units and further ordered for putting the building in earmarking and rejected the appeals by an order, dated 17‑5‑1960. Against this order, the respondents Nos.2 and 3 filed a revision before the Additional Settlement Commissioner, ‑ who after inspection rejected the revision by his order, dated 15‑8‑1960. It is the further case of the petitioner that at no time respondents Nos.2 and 3 filed any objections against the inclusion of this house in the earmarking list, its subsequent draw or issuance of transfer documents in favour of the petitioner on 3‑9‑1960 and 19‑9‑1960. Against the order of the Additional Settlement Commissioner, respondents Nos.2 and 3 filed second revision before respondent No.1 and by misstatement succeeded in obtaining an ex parte order without making the petitioner as party although he was transferee of the house in dispute and had been issued the transfer documents, after having paid the full consideration against the said house. The respondent No.1 without making petitioner a party passed an order without site inspection and without considering material facts and evidence on record and directed the transfer of portions of the house to respondents Nos.2 and 3 by his order, dated 26‑5‑1962. Respondent No.1 passed an order on 15-10-1963. The petitioner challenged the aforesaid orders in a Writ Petition No.288 of 1964 in the then High Court of West Pakistan at Karachi. The petition was allowed on 16‑5‑1966 and the matter was remanded for decision after hearing both the parties. On remand, the respondent No.1 dismissed the revision for non‑prosecution as respondents Nos.2 and 3 were not present. The respondents Nos.2 and 3 filed an application for restoration of the revision application which was also dismissed on 11‑11‑1968. Then the respondents Nos. 2 and 3 filed Writ Petition No.446/70 and 447/70 which were allowed on 31‑5‑1974 and the case was remanded to the Settlement Authorities for deciding the same on merits. Against the said judgment, the petitioner filed a petition for leave to appeal before the hon'ble Supreme Court which was. granted on 26‑2‑1976. The judgment of this Court, was however, later on, maintained. The respondent No.1 restorcd the revision application vide order, dated 26‑2‑1989 and thereafter allowed the revisions vide order, dated 30‑11‑1989. Hence the present petition. I have heard Mr. Mirza Abdul Rashid, learned counsel for the petitioner. I have perused the impugned order and have gone through the. annexures annexed to the petition. It is an admitted position that the predecessors of the respondent No.2 and the respondent No.3 filed LH Forms for the transfer of the house in question. "The Form of late Mir Wali Muhammad Khan was rejected by order, dated 19‑9‑1951) while the LH Form of respondent No.3 was rejected on 10 11‑1959. Appeals were filed both by Mir Wali Muhammad and Ali Nawaz before the Deputy Settlement Commissioner which were dismissed on 17‑5‑1960 on the ground that although two portions of the building bore two separate numbers but it was in fact a single building and since the value of the entire building exceeded Rs.10,000 it could not be transferred to a local. Mir Ali Nawaz had preferred revision against the order, dated 21‑12‑1959 of the Deputy Settlement Commissioner. The Additional Settlement Commissioner admitted it on 28‑12‑1959 and ordered status quo meanwhile. While the revision petitions of Mir Wali Muhammad and Mir Ali Nawaz were pending before the Additional Settlement Commissioner, the property was brought in, earmarking list for disposal by drawing lots. It was drawn in favour of the petitioner. It is needless to state that such disposal of the property was opposed to law as the question of entitlement of the said Mir Wali Muhammad and Ali Nawaz was under consideration of the Additional Settlement Commissioner. Under para. 4 of the Schedule of the Displaced Persons (Compensation and Rehabilitation) Act, house could be disposed of on evaluation basis only if the same could not be transferred‑under paragraphs 1, 2 and 3 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Since the revision petitions were pending adjudication, the object of writ of certiorari is to foster justice. In. the present case, the order of transfer of the property in favour of the petitioner, when the revision petitions of the predecessors of respondent No. 2 and respondent No. 3 had not been decided, operated to effect injustice to the respondents Nos.2 and

3. Even the property was not available for transfer. The Settlement Commissioner heard the revision petitions and before hearing the petitioners, he called for a report from the Additional Settlement Commissioner, who made a site inspection and submitted his report that the house consists of two independent tenements with separate amenities of life and each portion could be treated as an independent house. Thus the Settlement Commissioner by his order, dated 26‑5‑1962 allowed the revision petitions and directed that the tenements in occupation of the respective respondents/petitioners be transferred to them. The petitioner submitted a review petition before the Settlement Commissioner which was rejected on 26‑5‑1962. The Settlement Commissioner, after hearing the parties, held that there was nothing wrong in his order, dated 26‑5‑1962. The case was ultimately remanded and was heard by the Notified Officer who on re‑assessment of the material available on record, came to the conclusion that the transfer of a house to the petitioner by draw of lots, was void ab initio as the house was not available for disposal under Settlement Scheme No.V of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The last but not least I am of the opinion that the impugned order of the learned Notified Officer seems to be fairly just and equitable inasmuch as it does substantial justice and purports to maintain the old allotments of Mir Wali Muhammad and respondent No.3. The impugned order of respondent No.1, therefore, appears to be legal and proper and no case has been made out for interference in exercise of discretionary jurisdiction of this Court. The petition is accordingly dismissed in limine. Consequently the application (Misc. 116/90) is also dismissed as having become infructuous. AA./J‑139/K Petition dismissed.