P L D 1983 Supreme Court 157 (PLP)

SHAFIUR RAHMAN, J.-Leave to appeal was granted to Mst. Fatima, a claimant displaced person, to examine whether the High Court was "not right in interfering with the exclusive discretion of the Settlement Authorities, ' as exercised by them in favour of the petitioner, on their view that the-house in question was divisible, and that the two rooms transferred to the petitioner constituted a separate independent and divisible unit, although it is part of a big house which was initially in possession of three. different families in separate portions". A residential building No. 2-40/37, Tola Ram Road, Quetta, came to be possessed at the time of its settlement and transfer by three families. Three rooms-with the usual amenities were in possession of Naseer Ahmad and after Independence this unit had been given in the municipal record No. 2-40/37 A. Four rooms with the usual amenities were in possession of Abdul Hameed, the contesting respondent. Two rooms with the usual amenities were in possession of Mst. Razia Begum, an allottee who happened to be the unmarried daughter of the appellant Mst. Fatima. In the first round of settlement the whole building was transferred to Naseer Ahmed. Abdul Hameed who had earlier refused to get any portion of the building transferred as its evaluation price was, according to him, had moved an application subsequently that as the price of such buildings had been reduced by 40 per cent., he very much wanted to get it transferred to him competing with Naseer Ahmed. Notice issued to all the three concerned in possession of the premises and after a detailed examination of the entitlements and inspection of the property the Assistant Settlement Commissioner submitted a report. As regards the, entitlement of Naseer Ahmed it was held by the Assistant Settlement Commissioner that "House No. 2-40/37. A occupied by Messrs Naseer Ahmad and others is quite independent, and they are also prepared to have the same provided the value of their portion is fixed proportionately." As regards the entitlement of Mst. Razia Begum the observation was that "list. RAZIA Begum had sent time-barred C. H. Form to Lahore which was rejected. She is making further efforts to get her C. H. Form admitted and I see that there is no possibility of its acceptance at this stage in view of the recent press note of the Chief Settlement Commissioner barring admission of all belated applications after the 15th July, 1960." As regards the divisibility of the portion in her occupation, it was held that "the portion presently occupied by Mr. Abdul Hameed Khan and Mst. Razia Begum constitutes one unit for which Mr. Abdul Hameed has a better entitlement for transfer, particularly in view of the fact that Mst. Razia Begum has not applied for its transfer". The Deputy Settlement Commissioner approved of this report with the result that the property was divided into two independent portions-one transferred to Naseer Ahmed, the other to Abdul Hameed. On 6-12-1960 the appellant submitted an application to the Deputy Settlement Commissioner stating that she had submitted a C. H. Form by registered post to the Additional Settlement Commissioner, Quetta .Division, Khairpur, seeking condonation of delay on or about 19-2-1960 and she wanted that her entitlement should be determined and she should be transferred this house. This application was entertained by the Deputy Settlement Commissioner who on 31-12-1960 passed an order giving her the portion in her occupation. The operative part of the order reads as hereunder : "She is stated to be occupant of a portion of House No. 2-40/37. 2/3 portion of this house has already been transferred to Abdul Hameed vide P. T. O. No. 784, dated 16-8-1960. The rest namely I is in occupation of Fatima Sahiba. She is a claimant also. Therefore, I consider that 1/3 portion of the house No. 2-40; 37 be transferred to her. She got the House No. 226/10 in earmarking which was later on cancelled as the occupant accepted it." Abdul Hameed challenged this order by way of an appeal to the Additional Settlement Commissioner who held that Mst. Fatima had not filed any form and that the portion in her occupation was not divisible from the one transferred to Abdul Hameed. The transfer in her favour was set aside. A revision petition was then filed by Mst. Fatima before the Settlement Commissioner. The Settlement Commissioner held as follows : "The lower Courts have held that the applicant was declared a successful lottery winner for another house bearing No. 2-26/10, at Quetta, which was later on transferred to the occupant of that house. She is, therefore, entitled to get one house in lieu of the house drawn in her favour. 1, therefore, transfer the independent portion of the house, which is in possession of the applicant not on her untraceable belated C. H. Form application but in lieu of the house drawn in her favour in the lottery." Both the parties went up in revision. to the Chief Settlement Commissioner. Fatima, it appears, claimed the entire portion not transferred to Naseer on the basis of being a claimant and a prior allottee and occupant. Abdul Hameed claimed that the portion transferred to him was not divisible any more and that Fatima had never filed any form and could not claim it. The Chief Settlement Commissioner dismissed both the revision petitions. Abdul Hameed filed a constitutional petition challenging the orders of .transfer passed by the Settlement Authorities in favour of the appellant. His case was that the appellant had not filed any form, that the delay had not been condoned, that the Deputy Settlement Commissioner could not re-open the case in which the order of transfer had been passed by any other D. S. C. and the entire series of orders passed icy appeal or revision were on that score, without jurisdiction and of no legal effect. The High Court allowed this petition and quashed the orders of the settlement authorities maintaining the transfer in favour of Abdul Hameed, as ordered by Deputy Settlement Commissioner on 4-8-1960. A Letters Patent Appeal filed by the appellant failed, hence this appeal. The learned counsel for the appellant, Mr. Akhtar Mahmood, Advocate, contended that there was ample evidence on the record in the form of the receipt of the registered letter by which the C. H. Form was sent to the Additional Settlement Commissioner and the subsequent application made by the appellant to show to the satisfaction of the settlement authorities that not only she had filed the C. H. Form but had been relentlessly pursuing her case for its admission and condonation. Therefore, there was no illegality in the settlement authorities accepting her claim based on such a C. H. Form. He has also in this context referred to and relied upon the decision of this Court in Altaf Hussain etc. v. Chief Settlement Commissioner (PLD1965SC68) to contend that limitation of time or date in filing her C. H. Form could not operate adversely to her interest and the limiting date had to be ignored and was in fact ignored by the settlement authorities. It was next contended by the learned counsel for the appellant that ultimately, notwithstanding the earlier order of the subordinate settlement authorities with regard to the divisibility of the portion transferred to Abdul Hameed, the finding at the apex is that the property is divisible and having divided it, Abdul Hameed was not left with any locus stand! to claim the transfer of two houses and could not at all in the face of such a division be considered to be an aggrieved party. Such an order of division could not according to the learned counsel for the appellant, be nullified in the constitutional jurisdiction by- the High Court. Finally, on the purely legal plane it is contended that the appellant being a claimant displaced person and a prior allottee in possession of the portion, could successfully compete with Abdul Hameed even if the portion transferred to Abdul Hameed was held to be indivisible. Reliance, is placed on the decision in Khuda Bakhsh v. Chief Settlement Commissioner (PLD1976SC687). After hearing at length the learned counsel for the parties on the points raised in the appeal, we find that there are two strong legal impediments to the transfer of the property to the appellant on the basis of what is said to be a belated C. H. Form filed by her on 19-2-1960. The first objection is based on her own recitals in the application to the Deputy Settlement Commissioner on which the case was re-opened and in the petition for leave to appeal. These recitals have the effect of completely non-suiting her in so far as relief is being claimed on the basis of her C. H. Form. In her application dated 6-12-1960 on which the proceedings before the settlement authorities restarted, in paragraph (7) (Page 100 of the record) she made the following statement of fact, "That House No. 2-26/10 situated on Tola Ram Road Quetta, was drawn in the lot in favour of the applicant on the basis of `E' form and the same was also transferred to her vide Provisional Transfer Order No. 27 dated 2-1-1960. But the applicant has been recently informed that even the same has been cancelled and the said P. T. O. is likely to be withdrawn. Now that the applicant desires that the house under her own occupation should be transferred to her she will feel satisfied and also satisfactorily compensated if under the circumstances explained above, her own house is transferred to her." This fact was repeated in paragraph (7) of the C. P. S. L. A. (Page 4 of the record) as follows; "That however, in the meantime the petitioner having not heard any thing about her own applications and C. H. Form; under the advice of settlement officials filed an E Form also but the same proved abortive and hence the petitioner redoubled her efforts to pursue the C. H. Form filed by her." The law applicable to a case wherein an applicant after filing a C. H. Form also files form `E' and takes part in earmarking, has been laid down with clarity and definiteness in Azizur Rahman v. Habib Bano (PLD1972SC52) in the following words :- "The declaration attached to Form B' appears to us to be in the nature of a condition precedent to participation in the earmarking scheme. This also appears to us to be a reasonable condition, for a person ought not normally to be allowed to participate in two different schemes. The Scheme No. V was really provided for those claimants displaced persons who were not in a position to get a house transferred to them under the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act of 1958. Thus, even if they were not certain that they would be held to be entitled to the transfer thereof, they could, . if so desired, abandon their claim under the Schedule and participate in the earmarking scheme. In the circumstances, we see no reason to depart from the law laid down by this Court in more than one cases. There are no valid grounds for distinguishing those cases from the present. The ratio of these decisions appears to be that the choice has to be made at the time of making the application in form 'E' and the choice so made is irrevocable. In our view, the filing of the 'E' form did amount to the withdrawal of the 'C. H.' Form, if any had already been filed." The earlier decisions on the same point, and to the same effect are contained in Asghar Hussain v. A. H. Hamid Musa (1968 S C M R 475) and Rashid Ahmad v. Settlement Commissioner (1970 S C M R 278). On her own statement of the case, therefore, it follows that while participating in the earmarking scheme she had in fact and in law abandoned her case initiated by filing of the C. H. form on 19-2-1960. She reasserted her claim by her application dated 6th December, 1960. There was no express condonation of the delay at any stage. It is also not shown that she filed a delayed C. H. Form at a time when the property of which she was seeking transfer remained available and had not already been transferred. The limitation with regard to the date or time by which the application should be -filed has a relevance only in the context of the availability of the property. A person cannot claim as of right that even if the property has been disposed of and he is late in filing the form, it should be entertained and the transfer already made should be re-opened. The case relied upon by the learned counsel for the appellant for avoiding the limitation with regard to the time or date itself is illustrative of the fact that such a date was given effect to and the applicant's claim preferred beyond time was rejected as would appear from the following observations made in Altaf Hussain v. Chief Settlement Commissioner "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." This aspect of the decision was taken note of and given effect to in Khalil Ahmad v. Settlement & Rehabilitation Commissioner (P L D 9 1965 Lah. 384). The fact that her C. H. Form was not the basis of determination of the entitlement or the transfer of the property in her favour would be amply clear from the following portion of the first order made in her favour "The lower Courts have held that the applicant was declared a successful lottery winner for another house bearing No. 2-26/10, at Quetta, which was later on transferred to the occupant of that house. She is, therefore, entitled to get one house in lieu of the house drawn in her favour. I, therefore, transfer the independent portion of the house, which is in possession of the applicant not on her untraceable belated C. H. Form application but in lieu of the house drawn' in her favour in the lottery." This ground made the basis by the Settlement Commissioner for transferring the property to her was wholly extraneous to the scheme of settlement and transfer and also contrary to what has been laid down in Asghar Hussain's case referred to above: "This rendered his participation in the earmarking scheme effective in all respects, i. e., it would be deemed that his application in form C. H. was cancelled as from the filing of his Form 'E' application, and be had to proceed with the scheme till its final termination, that is to say, till transfer of the house he drew was made to him. The only circumstances in which substitution of a house drawn in an earmarking scheme by another house are permissible are those specified in the Central Government's instructions of the 7th April and the 28th July 1960, namely, where the house drawn in a participant's favour could not be transferred to him on account of its acquisition by the Government or for any other reason," such claimant would be entitled to choose another house out of an earmarking or an auction list under certain conditions." As regards the question of divisibility, there was an earlier order which squarely dealt with the issue. The problem of divisibility was not at any stage thereafter tackled with the same directness and definiteness. No defect was indicated in the order by which it was held that the portion comprising the one in possession of Abdul Hameed and the other in possession of Mst. Razia Begum was one, indivisible unit. Without adverting to the problem and without deciding it the Settlement Commissioner ordered the Deputy Settlement Commissioner to issue appendix for the portion in appellant's possession at a proportionate evaluation price. The Chief Settlement Commissioner affirmed the decision only because it followed the principle of possession, the divisibility of the property or its indivisibility remaining all the time unattended. There was, therefore, no question of the High Court interfering in the constitutional jurisdiction with the orders of division. On the contrary what the High Court has done is to deny the jurisdiction to the settlement authorities to proceed and decide a matter on grounds totally extraneous to the case and thereafter the decision which remained in the field is the one of Additional Settlement Commissioner whereby the transfer orders as made on 4-8-1960 were upheld. We find no merit in the appeal and the same is dismissed with no order as to costs. S. Q. ?????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.