P L D 1967 Lahore 946 (PLP)

4. The Deputy Settlement Commissioner summoned the parties and by his order dated the 29th of March 1961, (Annexure `D/1') accepted the review petition and cancelled the transfer made to the auction‑purchasers. It may be mentioned here that on the date the Deputy Settlement Commissioner heard this case and announced orders, the Chief Settlement Commissioner had passed orders of the transfer of this case to the Additional Settlement Commissioner. A request was made to the Deputy Settlement Commissioner to adjourn the case in view of the fact that a petition for transfer had been filed but he refused to accede to this request on the ground that no stay order had been shown to him.

5. An appeal was filed by the petitioners before the Additional Settlement Commissioner on the 7th of April 1961, (grounds Annexure `E'). The Additional Settlement Commissioner wrote a lengthy orders, in which the legality of the order of the Deputy Settlement Commissioner also came under discussion. He accepted the appeal and set aside the order of the Deputy Settlement Commissioner, but refrained from passing any final order in respect of the property in dispute on the ground that he himself was the Chairman of the Auction Committee which had transferred this property to the present petitioners. A copy of the order of the Additional Settlement Commissioner, dated the 7th of May 1961, is Annexure `E/1'.

6. Respondent No. 1 thereafter filed a revision petition before Sardar Muhammad Zaman Khan, Settlement Commissioner, Rawalpindi Division, who by his order dated the 13th of July 1961 (Annexure `F/1') held that the property in dispute was a shop and it had been disposed of according to law. Emphasis had been laid during the arguments before the Additional Settlement Commissioner and the Settlement Commissioner on the language of Paragraph 20 of Settlement Scheme No. I, which says that in case a house or a shop has been converted to some other use, the Chief Settlement Commissioner will decide about the manner in which that property is to be treated. On behalf of respondent it was argued that since the Chief Settlement Commissioner bad not determined the nature of the property, the auction proceedings were void. The learned Settlement Commissioner held that the installation of the machinery which was done in 1954, before the order of allotment had been passed, did not convert the property into an industrial concern. He also held that the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner had decided by his order passed on the transfer application of the present petitioners, on the 29th of March 1961, that the case should be dealt with by the Additional Settlement Commissioner and for this reason the order passed by the Deputy Settlement Commissioner did not deserve any consideration.

7. The respondent thereafter filed a revision petition which was heard and decided by Ch. Sultan Muhammad Khan, Settlement and Rehabilitation Commissioner with powers of the Chief Settlement and Rehabilitation Commissioner, Rawalpindi Division. He accepted the revision petition by his order dated the 24th of April 1962 (copy Annexure G/1). He held that unless the Chief Settlement Commissioner had determined the nature of the disputed property, the petitioners were not entitled to the purchase of this property. He also held that this property had been converted into an industrial concern and should have been disposed of as such and not as a shop. The petitioners thereupon filed the present writ petition.

8. It has been argued before me that the order of the Deputy Settlement Commissioner was a nullity in the eye of law for two reasons, firstly, because he had no jurisdiction to review the order passed by the Additional Settlement Commissioner in his capacity as a Chairman of the Auction Committee and, secondly, for the reason that the Settlement Commissioner with the powers of the Chief Settlement Commissioner had transferred the case to the Additional Settlement Commissioner, by his order dated the 29th of March 1961 and all proceedings taken by the Deputy Settlement Commissioner on that date were, therefore, without lawful authority. It was also argued that the language of the Press Note very clearly excluded the properties which had been disposed of and that this Press Note could not affect retrospectively the rights which had already accrued to the petitioners. With reference to the interpretation of paragraph 20 of Scheme No. 1, it was stated that it was a directory provision and its non- compliance will not, in any case, affect the rights of the third party which had vested in them. It was also asserted that this building does not come within the definition of a converted building because on the findings of the Additional Settlement Commissioner it was being put to the same use to which it was put before its allotment. The learned counsel further averred that the petitioners even after the publication of the Press Note dated the 3rd of May 1960, waited for about ten months to file their petition which did not lie according to law. It was termed as a revision petition and apparently, according to law no revision petition lay before the Deputy Settlement Commissioner. It was at the most a miscellaneous petition moved long after the rights of ownership had been transferred to the present petitioners. It was also said that if respondent No. 1 thought that this property was an industrial concern, it should have applied for its transfer at that time, under the provisions of para. 15(3) of the Schedule to the Act. The auction list had been given wide publicity and the failure of the respondent No. 1 to raise any objection to its transfer should have been sufficient to put them out of Court.

9. The learned counsel for the respondent, Sh. Khurshid Ahmad, argued that the Additional Settlement Commissioner, who had given approval of this auction, had no authority to do so under the law at that time. He referred in this connection to Fazal Karim & Bros. v. Chief Settlement and Rehabilitation Commissioner and others (P L D 1964 Posh. 129), wherein it was held that if the powers to auction properties were not delegated by the Chief Settlement Commissioner to an Additional Settlement Commissioner by a notification, the delegation will not be valid. Elucidating this point further, the learned counsel argued that on the day the present writ petition was filed there was no right in the petitioners to file this writ petition. He asserted that the only legal order in the field was the impugned order of Ch. Sultan Muhammad Khan, Settlement Commissioner, with the powers of the Chief Settlement Commissioner. When it was pointed out that Ordinance XIII of 1964, whereby section 10 of the Act was amended had validated all things done and actions taken, order or orders passed, etc., by the officers authorised by the Chief Settlement Commissioner, the learned counsel said that this amendment did not cover the cases which had been finally determined under the law as it then existed and did not affect persons who had been invested with certain rights on the basis of the adjudication made in their favour. He in this connection referred to John Lemm v. Thomas Alexander Mitchell (1912 A C 400). In the precedent case the respondent sued the appellant for damages for criminal conversation with his wife. The suit was dismissed on the ground that the English Divorce Act of 1857, which abolished action for criminal conversation, had by an Ordinance been applied to Hong Kong to which the parties belonged. Subsequently an Ordinance was passed which revived the right of action for original conversation. The respondent after the revival of the law brought a fresh suit. The plea of res judicata by the respondent was repelled by the Courts in Hong Kong including the Supreme Court of that Colony. The case thereafter came before the Privy Council. Their Lordships held that the new law could not be interpreted to deprive a litigant of the benefit of a judgment which was rightly given in his favour and was still subsisting. They, therefore, accepted the appeal and set aside the order of the Supreme Court of Hong Kong.

10. The proposition of law expounded by the learned counsel as it is, is not exceptionable. But the question is whether the impugned order carries with it such finality that this Court cannot enter into an examination of its correctness or otherwise. The learned Settlement Commissioner gave two reasons for setting aside the order of auction. He firstly held that the premises was an industrial concern and not a shop and that since the determination of the character of the property concerned had not been made according to para. 20 of Scheme No. I, the property in dispute could not be transferred by auction to the present petitioners. I may observe here that the provisions of para. 201 are directory and in any case, the failure of the Chief Settlement Commissioner to determine the character of the property before its transfer, cannot be a ground for divesting third persons of the rights acquired by them in due course of law. The Settlement authorities treated this property as a shop all along and since no directions regarding converted properties were available at that time, the property in question was rightly transferred as a shop by a public auction. If the respondent No. 1 felt that it was ay industrial concern and not a shop, he could have claimed its transfer under para. 15(3) of the Schedule to the Act, as under that provision of law the local occupants of industrial concerns are eligible for transfer. This they did not do at the proper time and permitted the Settlement authorities to auction it to the petitioners. They cannot now turn round and ask the Settlement authorities to enforce the Press Note dated the 3rd of May 1960, with retrospective effect, especially when the Press Note itself excludes from its operation the properties which had already been disposed of. I may also say that it is doubtful if this is a case of converted property. The property in question had all along been put to the same use. As would appear from the order of the Additional Settlement Commissioner (Annexure `E/1'), it was described in the Rehabilitation file as a workshop and a Show Room. The above order also refers to the statements of Sadiq Hussain Shah and Mangu Khan, made before the Rehabilitation authorities on 31‑1‑1965, on behalf of respondent No.

1. In these statements it has been mentioned that they had the agency of new cars and trucks and had a petrol pump apart from a workshop and a service station. Shop has been described in the Act as an "evacuee business premises" and they fact that it was being used as a show room for new cars and trucks and had also a petrol pump, would clearly show that there was actually no conversion of this premises from a business premises to an industrial concern. The installation of machinery by the respondent No. 1 later on for the purposes connected with their trade will not convert the nature of the use of the, property although it may be termed as an extension of their business.

11. It was stated at the Bar that the petitioners had paid the bulk of the price of the disputed property and only a small amount of Rs. 7,979 remained unpaid because of the cancellation of the auction in their favour. A P. T. O. was issued to them and they were prevented to acquire full proprietary rights in the property under para 22 of Chapter VIII of Settlement Scheme No. II, provisions whereof also apply to the auction of shops, etc, vide Memo. No. 839 PI‑Reh. 60, dated the 9th of January 1960. printed at page 103 of the old Manual of Settlement Law and Procedure (1st Edition), by the action of the Settlement department. I also find that the petition before the Deputy Settlement Commissioner, who had showed extreme eagerness to deal with this case, was not competent. The application was made to the Deputy Settlement Commissioner about ten months after the target date mentioned in the Press Note of 3rd of May 1960, The Deputy Settlement Commissioner could not entertain a revision or review petition against an order of the Additional Settlement Commissioner, who was the Chairman of the Auction Committee. He had further become functus officio in view of the orders of transfer of the case from his file to that of the Additional Settlement Commissioner. The whole structure built on these proceedings which were not competent and were without jurisdiction, is, therefore, founded on an illegality. The impugned order suffers from an infirmity on this account also. The dictum of their Lordships of the Supreme Court in Yousaf Ali v. Muhammad Aslam Zia (P L D 1958 S C 104), would apply with full force to this Base.

12. Assuming that the property in dispute was a converted property and was wrongly disposed of as a shop, even then its transfer could not be questioned in view of the terms of the Press Note, relied upon by respondent No.

1. The clear Intention of the Press Note was that the transfer of properties before the publication of this Press Note under whatever description it may have been made, was not to be called in question. It was a salutary provision introduced with a full conscious-ness that rights already acquired could not be nullified with retrospective effect by the issuance of a Press Note. If once we grant that already finalised cases could be reopened on the basis of this Press Note, the protective provisions contained therein would become nugatory. We have to enforce the provisions of the Press Note as they are and should not accept an interpretation of its contents which run counter to its clear intention.

13. In view of what I have said above, this writ petition is accepted with costs and the impugned order of the Settlement Commissioner with the powers of the Chief Settlement Commissioner is declared to be without lawful authority and of no legal effect. The petitioners will get their costs from respondent No.

1. A. H. Petition accepted.