1989 PLP 3311 (MLD)

MAHBOOB AHMAD, J.--This appeal under Clause 10 of the Letters Patent of Lahore High Court calls in question judgment, dated 9-3-1971 passed by a learned Single Judge of this Court m writ petition No.1160-R of 1964.

2. The facts necessary for the purpose of this appeal, briefly stated, are that the property in dispute viz. No.B-XXVII-6-S-17, Gujranwala is situated in a commercial area of the city. The shop on the ground floor has been in occupation of Hayat Ali, respondent No.2, whilst Nikka Khan claimed to be the allottee in occupation of the Chaubara above the shop. Nikka Khan applied for transfer of the Chaubara in his occupation through a N.C.H. form, whereas respondent No.2. applied for transfer of the shop. The learned Deputy Settlement Commissioner rejected the N.C.H. form of the deceased appellant by his order, dated 20th of September, 1962 on the following two grounds:- (a) That the said appellant had not deposited the arrears of rent; and (b) That since the property is situated in a commercial area the entire property has to be treated as a shop and thus the entitlement to its transfer is that of respondent Hayat Ali. By the same order the learned Deputy Settlement Commissioner transferred the property to Hayat Ali on his C.S. form.

3. The deceased appellant preferred an appeal before the learned Additional Settlement Commissioner who by his order, dated 10th of June, 1963 dismissed the appeal. The learned Additional Settlement Commissioner while dismissing the appeal agreed with the findings of the learned Deputy Settlement Commissioner as reproduced above and the additional reason for dismissing the appeal given by him was that it was barred by time.

4. Still dissatisfied the deceased appellant went up in revision before the learned Settlement Commissioner, Lahore Division, Lahore who dismissed the same by his order dated 28th of May, 1964. The learned Settlement Commissioner in addition to the reasons given in the orders of the Deputy Settlement Commissioner and the Additional Settlement Commissioner also held that Hayat Ali being a claimant has to be given preference over Nikka Khan appellant who is a non-claimant and that no reasonable cause was shown by the appellant for the inordinate delay in filing the appeal 'before the learned Additional Settlement Commissioner.

5. The deceased appellant did not leave the matter at that and preferred to invoke the Constitutional jurisdiction of this Court by filing a petition under Article 98 of the late Constitution of Islamic Republic of Pakistan, 1962. This Constitutional petition was dismissed by the learned Single Judge by his judgment, dated 9th of March, 1971, whereupon the present Letters Patent Appeal was filed.

6. The learned counsel for the appellant has 'raised the following three contentions:- (1) That the order of the Deputy Settlement Commissioner, dated 20th of September, 1962 holding that the appellant having not paid the arrears of rent was not entitled to the transfer of the property was passed without notice to him and as such the said order as also the appellate order holding the appeal as barred by time cannot be sustained. Reliance was placed in support of the above contention on "Malik Sarwar Khan v. Chief Settlement Commissioner, Lahore and 4 others" reported as PLD 1973 Supreme Court 210; (2) That the appellant had been inflicted with discriminatory treatment in that in similar situation premises adjacent to the disputed premises had been treated as two units by transferring the shop on the ground floor to one party and the Chaubara thereon to another party. Reference was made to order, dated 20th of September, 1963 passed by the same Deputy Settlement Commissioner (Annexure `H' to the writ petition); and (3) That the appellant having not been afforded the opportunity to show that the property is divisible the orders of the Settlement hierarchy are liable to be quashed and case remanded for adjudication afresh.

7. On the contrary, the learned counsel for the respondent contended that the submissions made on behalf of the appellant are not well founded in that the consideration weighing with the Settlement Authorities for rejecting the form of the appellant was not solely the non-payment of arrears of rent but the major consideration that weighed with them was that the property is situated in a commercial area and has to go as a commercial unit viz. shop in pursuance of the instructions contained in Memorandum N. Comp/Reh/59/5242, dated 22nd of October, 1959 appearing at page 69 of the Old Settlement Manual and further that the appeal preferred by the appellant before the Additional Settlement Commissioner was barred by time.

8. The learned counsel for the respondent further argued that the learned Single Judge had considered the question of remanding the case as canvassed by the learned counsel for the appellant today and for valid reasons disallowed this request.

9. The learned counsel for the respondent also contended that the findings now being challenged by the learned counsel for the appellant are primarily on questions of fact and being not open to question in the Constitutional jurisdiction had been rightly repelled by the learned Single Judge.

10. Having given consideration to the controversy involved we are of the view that the contentions raised on behalf of the appellant have no force. In fact all these contentions have been adequately dealt with by the learned Single Judge and we see no reason to differ with his findings.

11. We may add that the learned counsel for the appellant while pressing his first contention that the order of Deputy Settlement Commissioner was liable to be quashed being based on the erroneous finding that the appellant having not cleared the arrears of rent was not entitled to the transfer of the Chaubara lost sight of the concluding sentence of the said order wherein the learned Deputy Settlement Commissioner had given a categorical finding that the transfer of the total premises to respondent No.2 is warranted in view of the position that the property is located in a commercial area. The said finding has consistently been concurred with by the learned Additional Settlement Commissioner and the learned Settlement Commissioner and has also been affirmed by the learned Single Judge. The said finding being concurrent and in accord with the provisions of law governing the subject can not be allowed to be questioned in the present appeal.

12. As regards the question of remand of the case to the Settlement Authorities on the ground that the appellant was not afforded an opportunity of hearing by the Deputy Settlement Commissioner, we suffice by observing that the appellant, if he had not been afforded an opportunity by the Deputy Settlement Commissioner, has been afforded the opportunity of hearing thrice over viz. by the learned Additional Settlement Commissioner, Settlement Commissioner and the learned Single Judge and despite these three opportunities he has not been able to show that he would have been entitled to the transfer of the portion in g dispute in the face of instructions referred to above. Not only that we have also afforded adequate opportunity to the appellant and he has not been able to dislodge us in our view of agreement with the findings of the forums below. The learned counsel for the appellant has also not been able to show how a non -claimant could be given preference over a claimant in the face of mandatory provisions of the Settlement Laws in this regard.

13. Apart altogether from the above position the remand of a case after a lapse of about 27 years viz. more than a quarter of a century in the attendant circumstances of the case will, as observed by the learned Single Judge, be l nothing but an exercise in futility.

14. In view of the foregoing discussion we find no merit in this appeal which is accordingly dismissed. However, the parties shall bear their own costs. M.Y.H./N-247/L Appeal dismissed,