P L D 1983 Lahore 502 (PLP)

This writ petition has arisen out of litigation which has a chequered history in respect of a composite building situated on Brandreth Road, Lahore.

2. The petitioner in this case Mir Salahuddin is the real brother of Alauddin against whom an ejectment petition by the respondent No. 3 succeeded before a learned Rent Controller on 12-11-1975 and the same was upheld upto the High Court in S. A. O. No. 372 of 1978 decided on 7-4-1979 when 15 days' time was allowed to the said brother of the petitioner for vacating the premises.

3. The petitioner before the expiry of these 15 days entered the scene on 19-4-1979 by filing a civil suit for a declaration that he should not be dispossessed except in due course of law, in the Court of learned Senior Civil Judge, Lahore and together with it he filed an application under Order XXXIX, rules 1 and 2 read with section 151, C. P. C., for maintenance of status quo and restraining the respondent from ejecting him from the suit property. .

4. The suit came up for hearing before the learned Senior Civil Judge on 22-4-1979 who granted an interim injunction on the same day with notice to the respondent for 3-5-1979. On written statement being filed, the facts were brought to the notice of the learned Senior Civil Judge i.e. eviction had been maintained upto the High Court level vide judgment dated 7-4-1979. The status quo order was therefore recalled and the plaint was rejected on the same day under Order VII, rule 11, C. P. C.

5. The petitioner then filed an appeal before the learned Additional District Judge on 16-7-1979 which was accepted on 3-11-1979. The view of the learned Additional District Judge was that Order VII, rule 11, C. P. C., was not applicable. The learned Additional District Judge therefore remanded the case.

6. The matter was then challenged before the High Court through Civil Revision No. 1443 of 1979 which was accepted by Mr. Justice Aftab Hussain on 3-5-1980 on the view that objection to a decree by the third party can be taken only under Order XXI and rules thereunder of the C.P.C. and not otherwise. The petitioner has now gone upto the learned Supreme Court by way of Civil Petition for Special Leave to Appeal No. 1115 of 1980 which is stated to be pending grant of leave. The learned counsel at the hearing had produced the paper book on my asking and these facts have been gathered from a perusal thereof.

7. The petitioner in the aforementioned set of circumstances and background opened up new front on the Settlement side by moving an application on 5-8-1979 before the Administrator (Residual Property) for transfer of a portion on the ground floor by describing it a godown of the property in question on the plea that the same had not been transferred to the predecessor in interest of the respondents and was available for transfer to him on the ground that he was in occupation thereof.

8. A report was called for from the Deputy Administrator who submitted the same on 11-8-1979. In the report, he gave the opinion that Qazi Amin-ud-Din predecessor interest of respondents Nos. 3 to 7 was the transferee of the property and the godown in dispute was in possession of Allauddin (real brother of the petitioner in this case Salahuddin) ad a tenant of the transferee- who was being ejected by the Civil Court due to non-payment of rent. It was further reported by him that in order to defeat the process of ejectment the applicant, a brother of Allauddin, made an abortive attempt to file R. ". Form for transfer of the godown in his name which was not available. He recommended that in view of these facts the application for the grant of permission to file requisite form under the Scheme known as the Scheme for the Management and Disposal of Available Urban Property may be rejected and the request for the condonation of delay and for the transfer of the property may be turned down.

9. The Administrator Residual Property accordingly informed the petitioner Mir Salahuddin that his application dated 5-6-1979 for condonation of delay had been rejected for the reason that the property in question was not available for transfer as it already stood disposed of. This was vide order dated 16-8-1979.

10. The petitioner then filed a review petition dated l0-9-1979 before the Administrator Residual Property. Again a report was made by the Deputy Administrator dated 24-10-1979 and this time the Administrator Residual Property vide his memo. dated 25-11-1979 purported to condone the delay.

11. On the happening of the aforesaid event, respondent No. 3 Qazi Zaheer-ud-Din filed Writ Petition No. 56JR of 1980 on the grievance that the order passed by the Administrator Residual Property on 25-11-1979 in reversal of his previous order dated 16-8-1979 was behind the back of Qazi Zaheer-ud-Din who was likely to be affected thereby. Both the learned counsel appearing for parties in this case gave a consent that the second order of the Administrator dated 25-11-1979 be quashed and the matter be remitted to him for fresh decision after notice to both parties and affording them an opportunity of being heard. This is vide order of the Lahore High Court dated 26-2-1981.

12. The matter was then taken up in remand by the then Administrator Residual Property and disposed of vide his order dated 8-12-1981. This learned officer took note of the fact that the property in dispute had been transferred by the order of the D. S. C., dated 28-3-1960 in its entirety to one Abdul Hamid. There was an appeal against this order which was accepted by Additional Settlement Commissioner, Mr. Muhammad Akram Khan on 20-6-1960 and the property was transferred to Amin-ud-Din father of Zaheerud-Din. There was a further revision before Syed Ijaz Hussain Shah, Settlement Commissioner, which was dismissed on 22-5-1960. It was also noted by him that some rooms on the first fl )or of this property were in possession of Allauddin brother of Salahuddin petitioner. He also took note of the eviction proceedings against Allauddin which culminated in the order of High Court dated 7-4-1979 passed in S. A. O. No. 372 of 1978 and the institution of civil suit leading to civil petition for special leave to appeal before the Supreme Court of Pakistan and the proceedings under Scheme No. 9 at the instance of the present, petitioner Mir Salahuddin. After elaborately noting the contentions raised from both the sides, the learned Administrator Residual Property, Lahore by his impugned order dated 8-12-1981 recorded the following findings : (i) that the silence of Salahuddin during the eviction application filed against Allauddin showed that the stand of the two brothers was alike. (ii) that Salahuddin petitioner had filed application under Settlement Scheme No. 9 (Residual Property Scheme) and prior to that he had never given an application under any other Scheme. From this fact, he inferred that the idea cropped up in his mind to have the godown treated separate from the rest of the property after.7-4-1979 when the S. A. O. of his brother Allauddin was dismissed by the High Court against his eviction on 7.4-1979. (iii) It was further held that Nishter Road (Brandreth Road) in the year 1947 could not be declared to be commercial area and even if that be assumed that it was a commercial area even them either Allauddin or Salahuddin should have given an application before the Settlement and Rehabilitation Authorities but they never did so. The reason for this was that when the property was transferred in favour of the father of Zaheer-ud-Din, so all the occupants including these two brothers knew that the property stood so transferred. (iv) The learned Administrator Residual Property found himself unable to agree with the argument of Salabuddin petitioner that since Zaheerud-Din knew that he had not been transferred the godown, therefore, he did not pay the entire transfer price. The reasoning of the Administrator Residual Property was that firstly Zaheer-ud-Din had obtained the transfer order in the yeAr ly-4. Secondly, the balance of transfer price amounting to Rs. 3,200 was paid by him in pursuance to the Department's notice of the year 1978. Thirdly, be was of the view that the petitioner could not capitalise on the weaknesses of the opposite side because according to him the failure of Salabuddin to apply for the transfer of the alleged godown upto 24-4-1979 spoke volumes. (v) He repelled the contention of the counsel for Salahuddin to the effect that the opposite side namely, respondent No. .3 had admitted the possession of Salahuddin. This learned officer was of the view that the stand of the two brothers was alike and their desire to perpetuate their possession of the property could not adversely affect the opposite side. (vi) He further repelled the contention of the petitioner Salahuddin that mere condonation of delay and permission to file the form did not adversely affect the interest of Zaheer-ud-Din respondent No. 3 because the case was now going to be decided by the Deputy Administrator. The reasoning given by him was that this was similar to the story of `the Arab and the camel'. The camel had sought permission of the Arab to put his neck under the tent toward off cold but ultimately occupied the whole of the tent. (vii) After spot inspection, he came ~o the conclusion that the place in dispute was located in the centre of the house and was clearly and visibly part and parcel of the said house. For all these reasons, the application of Salabuddin petitioner was dismissed and the property was held to have already been transferred to Zaheer-ud-Din.

13. The petitioner has thus approached the High Court by way of the present writ petition.

14. When this petition came up for limine bearing, in order to appreciate the full facts of the case and the submission of the learned counsel, I had summoned the record and also called for parawise comments.

15. I have heard the learned counsel for the petitioner at length on various dates. The departmental stand is to the effect that the property already stood transferred to the father of respondent No. 3 and thus-was not available for disposal under the Residual Property Scheme. I- propose to deal with the contentions of the petitioner raised at the hearing.

16. The foremost attack of the petitioner is directed against the entitlement of respondent No. 3 Qazi Zaiheer-ud-Din on the reasoning that on the demise of Qazi Amin-ud-Din, the original transferee, respondent No. 3 has got himself declared as successor-in-interest through the exclusion of other heirs. This ground seems to have been raised in order to lend strength to the maintainability of the writ petition, otherwise I fail to understand how is it the concern, of the petitioner. To my mind, he does not have the locus standi to agitate pro bono publico the question of inheritance of Qazi Amin-ud-Din. It is the concern of the legal heirs and they can sort out the matters amongst themselves. This is not a ground which can be captalised by the petitioner in order to succeed in the present proceedings.

17. The next contention of the learned counsel for the petitioner is that no limiting date could be prescribed for submission of applications under para. 3 of Settlement Scheme No. 9 (Residual Property Scheme). Reliance has been placed on the decision of the Supreme Court in re : Ch. Aftab Hussain v. The Chief Settlement Commissioner, Pakistan, Lahore and 2 others (P L D 1965 S C 68). I have considered the submission but I find no merit in it. The enunciation of law made by the learned Supreme Court was based on the wording of the relevant provision of Settlement Scheme No. 1 framed under the Repealed Displaced Persons (Compensation and Rehabilitation) Act, 1958. 1 am unable to subscribe to the reasoning of the learned counsel that for all times it has been laid down that under no circumstances a limiting date can be legitimately prescribed by the Authorities acting under any statute. The present proceedings arise out of Act XIV of 1975. The case in band is more aptly governed by the principle laid down in this very judgment at page 82 of the report as under : "The C H. form submitted by the second and third appellants was apparently intended as a second string to their bow if the first appellant's second C. H. form was not considered valid. It was admitted only conditionally and was rejected, it seems rightly, when it was found that the house had already been transferred ???????????????????????????.? Moreover, this argument cannot succeeded for the reason that the position. elucidated by the learned Supreme Court and followed by the High Court is that where it is found that the property already stands transferred, the application being belated can be rightly rejected on that ground. The case in hand is covered by the latter category and not by the former. Additionally, the Residual Property Scheme, as is quite evident from its plain provisions, is only applicable to such properties as did not already stand transferred. In the present case, the finding is to the effect that the property in dispute stood transferred in the year 1960 in favour of the predecessor in interest of respondent No. 3 and even a final transfer order issued in 1974. Therefore, refusal to condone the delay or to entertain the application of the petitioner appears to me to be unexceptionable.

18. The next argument of the learned counsel for the petitioner is to the effect that the Administrator had to condone or not to condone the delay but he bas wrongly assumed jurisdiction by entering upon the merits of the case. The argument seems to be not well based. It was incumbent upon d the Administrator Residual Property, while considering the request of the petitioner to condone the delay and to entertain. his application under the Residual Property Scheme, to address himself to the question whether the property was an available property or not and if it was available whether the delay had to be condoned. I think the Administrator Residual Property has done well in firstly informing himself about the whole background of the case and then applying his conscious mind for the purpose of the decision of the question whether the application was to be entertained or not on the ground that the property already stood disposed of and whether in such circumstances the delay could be condoned. This jurisdiction was inherent in the Administrator Residual Property and it cannot reasonably be said that he assumed a jurisdiction which he did not possess. Moreover, the petitioner himself gave the application for condonation of delay and entertainment of his application for transfer and having done so, he cannot now turn around and be heard against his own conduct. The learned Supreme Court of Pakistan in the case of Ghulam Mohi-ud-Din (P L D 1964 9 C 829) has already held that a party invoking the jurisdiction of a tribunal by his conduct is precluded from subsequently challenging the order passed on his own initiative.

19. The further ground urged by the learned counsel for the petitioner is that respondent No. 1 had himself earlier ordered on 20-11-1979 that it was not a fit case for the condonation of delay as the property stood transferred and therefore it had the jurisdiction to take a contrary view and thus his review application was competently filed. I must observe in this respect that even if the order was administrative in nature, the ratio of the case of Pakistan v. Muhammad Himayatullah Farukhi (P L D 1969 S C 407) would fully stand attracted to the facts of the present case. In the precedent case, the Supreme Court had laid down the principle of locus poenitentiae even by virtue of the General Clauses Act. It was thus ruled that where an order had been passed and conveyed, it took legal effect and on the basis of it rights accrued in favour of the party, then the functionary did not possess the locus poenitentiae to vary or alter that order. The order dated 20-11-1979 was passed and conveyed and thus it took legal effect and created a right in favour of respondent No. 3 inasmuch as his entitlement could not be subjected to attack by virtue of the Residual Property Scheme. C Furthermore, there is no provision under Act XIV of 1975 or the Scheme framed thereunder providing for review of a previous order. The framers oft the Scheme in their wisdom had only made a provision for a revision oft the order of the Deputy Administrator Residual Property. The power of review therefore had to be specifically conferred and cannot be conceded as being inherent in Administrator Residual Property. Reference may advantageously be made to the ratio of the decision of the learned Supreme Court in re : Muzaffar Ali v. Muhammad Shafi (P L D 19813 C 94). The argument therefore, instead of going in favour of the petitioner, is against him.

20. It was next contended by the learned counsel for the petitioner that this Court ought to take notice of the fact that in the course of previous Writ Petition No. 56/R of 1980, the report submitted by the Department was in favour of the petitioner inasmuch as it had been stated therein that the property was an available property. I may, however, observe that the stand taken by the Department in the present case is to the contrary as it has been categorically stated that the property stood transferred way back ir, 1960 and is not an available property. I can do no better than observe that o the reports of the Settlement Department in the previous writ petition and the present petition only go to show the mind and the attitude of the functionaries holding certain posts. The opinions expressed in the report are in no manner binding and would not be advancing the case of the petitioner because the proceedings were being contested by private respondent No.

3. The impugned order of the Administrator Residual Property is to be adjudged on its own merits: At any rate, whatever be the evidentiary value of the two reports, the letter cancels the former. The argument therefore fails.

21. The learned counsel for the petitioner further sought to argue that by virtue of second proviso to section 2 of the Displaced Persons (Compensation and Rehabilitation) Act in respect of composite property, unless a declaration was made, the commercial part of the property could not be treated as a part of the house. The learned counsel relied on the ratio of Abdul Majid's case (P L D 1967 SC 437). The argument of the learned counsel cannot be sustained for many reasons. Firstly, the ratio of Abdul Majid's case would not apply to the facts of this case because the finding is that the room in question which is described by the .petitioner to be a godown is located in the middle of the house and is E a part of the house. Secondly, the petitioner is in no position to make a collateral attack on the orders of the Additional Settlement Commissioner of the Settlement Commissioner passed way back in the year 1960 which have attained finality in law. The petitioner never assailed those orders as some of the other occupants did but failed. There can be no collateral attack on those orders in these proceedings more than two decades thereafter. The petitioner not having agitated. against the orders of transfer reconciled to his fate and thus acquiesced in those orders. On no conceivable principle there fore, I can entertain this argument or sustain it. The argument is accordingly repelled.

22. Lastly, the learned counsel for the petitioner argued that the impugned order of the Administrator Residual Property stood vitiated for the reason which weighed with him that the writ petitioner had not applied under Scheme No. I and therefore he could not claim transfer under Scheme No.

9. According to the learned counsel this was against the spirit of the Scheme. The argument in my view does not seem to proceed on correct appreciation of the reasons and the findings of the learned Administrator Residual Property. A perusal of his order would show that while taking stock of the entire background 'of the case and the various stages through which the litigation has passed, he observed that the petitioner", for the first time had thought of having the godown in his possession declared as a separate unit after 7-4-1979 when the S. A. O. against the eviction of his brother Allauddin had been dismissed by the Lahore High Court. The chain and sequence of events, as already noticed in the earlier part of my judgment, would itself show that the petitioner entered the arena after his brother Allauddin had lost the legal battle upto the High Court. The brother of the petitioner had been allowed 15 days' time for vacating the premises by the High Court on 7-4-1979. Thereafter; the petitioner filed the suit for declaration and injunction on 19-4-1979. It was still later that he thought of approaching the Authorities under the Residual Property Scheme in his effort to - strike at the very entitlement of the landlord by fling the aforesaid civil suit in respect of which a civil petition for special leave to appeal is pending before the :earned Supreme Court. This was a relevant circumstance for the Administrator Residual Property to consider for deciding the question whether the form was to be entertained or the delay was to be condoned or not and whether the proceedings before him were bona fide. The finding of respondent No: 1 is not to the effect that the provisions of Residual Property Scheme are not available for persons who did not apply under Settlement Scheme No.

1. I am therefore unable to read into the impugned order something which is conspicuous by its absence.

23. In the last analysis, I am firmly of the view that in the patent background of this case and facts established, the inference is irresistible that the petitioner is making his last attempt to catch a straw like a drowning man in his effort to revive water-logged disputes and matters which have become transactions past and closed. The provisions of Settlement Scheme No. 9 are not meant to be abused so as to affect the finality of the orders under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which stands repealed with effect from 1-7-1974. The very fact that on interpretation of various orders and documents it has been held. by the Administrator Residual Property that the property in dispute of which the godown forms part already stands finally transferred in favour of respondent No. 3 concludes the matter. It was not open for the Deputy Administrator or the Administrator to go -behind the final orders passed under the law as it stood at the relevant time and therefore the refusal of the request of the F petitioner to condone the delay and to entertain his application for transfer under Scheme No. 9 on the ground that the property already stood transferred is not open to any valid exception. It is not a case where a property had been transferred to a transferee under the provisions of the Displaced Persons, (Compensation and Rehabilitation) Act, 1958 by description of a room or two. which clearly showed that there was still available some part of the property for disposal under the Residual Property Scheme. The whole property having been rightly or wrongly transferred, the matter cannot be reopened after decades because there was a litigation between the petitioner's brother and the respondent and the petitioner is also interested in putting his weight in favour of his brother and to safeguard his own interest at the cost of the transferee,

24. No other point was urged before me.

25. I do not think this is a fit case where I should come to the aid of the petitioner in exercise of my discretionary jurisdiction. The writ petition has no merit and the same is accordingly dismissed in limine.