1994 PLP 2138 (CLC)

4. Before dealing with the aforementioned contention raised on behalf of the appellant, it may appropriately be observed that the Settlement Authorities, have in the meanwhile transferred this property in favour of Mukhtar Ahmad again on 3‑1‑1974 on the basis of his possession, which order of transfer, according to the learned counsel for the contesting respondent, is continuing in force. This position has not been controverted by the learned counsel for the appellant.

5. Having given consideration to the only contention raised on behalf of the appellant, we may observe that the same does not have any force. In order to appreciate the correct position, we may analyse the ratio of the cases cited on behalf of the appellant. In the first case this Court held that:‑‑ "the question whether a person is or is not in possession of a particular property would ordinarily be a question of fact and the High Court acting under Article 98 of the Constitution would not interfere with such a finding of fact, but if the question of possession has reference not merely to the factum of physical possession; but also to the legal definition of that term as adopted in the relevant statutes, then the question can no longer be described as a pure question of fact." It was further held that:‑‑ "There is a basic distinction between the case of an allottee who has obtained physical possession in pursuance of his allotment order and that of an allottee who has not succeeded in doing so." The facts of the cited case clearly show that there was a contest between the holder of an allotment order and a person without such an order. This was not a case of reference by the Enforcement Department in pursuance of SRO No.824(K) 1961 promulgated by the Central Government on the 1st of September, 1961. The ratio in the aforementioned judgment would not help the appellant. The second case also in no manner helps the appellant. On the contrary, it goes against the case of the appellant. In the said case it was held that an informer did not possess any right to the transfer of the property under Central Government Order, dated 1‑9‑1961, and that the pending proceedings were not saved. The material facts in this cited case are:‑‑ (a) Legal force behind the Order dated 1st of September, 1961, promulgated by the Central Government, was clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act. (b) The aforementioned clause (b) of section 10 was deleted on 13th January, 1962 by Ordinance No. II of 1962. (c) A person who laid information under order dated 1‑9‑1961 that an evacuee property was in unauthorised possession or was the subject matter of irregular transfer was obviously not in possession and consequently not eligible for transfer. Power to transfer and evacuee property to an informer who was not in possession was thus taken away with effect from 13th January, 1962 when Ordinance II of 1962 came into force. (d) The provisions of section 6 of the General Clauses Act also did not apply as no right had come to be vested in the informer. Further, all pending cases under Order dated 1st of September, 1961, lapsed with the repeal of clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act.

6. In the case in hand the admitted position is that the property in question was transferred in favour of the appellant/informer on 14‑1‑1963, on which date it could not be done in view of the law laid down by the Supreme Court of Pakistan in the aforecited case. In these circumstances, there is no legal infirmity in the impugned order passed by the learned Single Judge, by which the writ petition of Mukhtar Ahmad respondent was allowed.

7. The then learned Chief Justice while delivering the impugned judgment also discussed the legal proposition canvassed in Muhammad Siddiq and others v. Chief Settlement and Rehabilitation Commissioner and others (PLD 1965 SC 123) by referring to a part of the judgment which reads as under:‑‑ "with the amendment of section 10 of the Act by Ordinance 11 of 1962, the Settlement and Rehabilitation Commissioner lost his power to take action under the Order. Ordinance II of 1962 contains no saving clause in respect of pending proceedings. Dr. Nasim .Hasan Shah attempted to press into service section 6 of the Central General Clauses Act for the purposes of suggesting that despite the amendment, the old proceedings could continue. But assuming, for the sake of argument, that this contention is correct, the point whether the transaction in dispute was really in "irregular transfer" within the meaning of the Order, would still remain and its answer would clearly be against the respondents."

8. There is yet another judgment Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208) wherein the legal proposition as prevailing in the present case has been fully discussed in the light of Ordinance II of 1962 where Order dated 1‑9‑1961, was discussed with reference to amendment of section 10 by Amending Ordinance II of 1962 which came into effect from 13th January, 1962. It was held that the order of the Chief Settlement Commissioner, dated 9‑5‑1962, was without jurisdiction as on that date he had ceased to have any power to transfer the shop to the informer, i.e., the appellant. In the cited case reliance was also placed on Muhammad Siddiq etc. v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (PLD 1965 SC 123) and Allah Ditta v. Haji Jan Muhammad and 3 others (PLD 1974 SC 113). .

9. From the above discussion, it clearly emerges that in view of the settled proposition of law the present appellant/informer had no right whatsoever to the transfer of, the property in question on 14th January, 1963 , a and, therefore, the order of the Settlement and Rehabilitation Commissioner s (Enforcement), Lahore, made on that date in favour of the appellant was wholly without jurisdiction. Resultantly, there is no merit in this appeal which is accordingly dismissed. The parties are, however, left to bear their own costs. AA./M‑1657/L Appeal dismissed.