1980CLC I:IR (PLP)

M. S. H. QURESHI, J.-The disputed property, i. e., bungalow No. 57, Mozang Road, Lahore, had been transferred in favour of Dr. M. S. Muttaqi, father-in-law of the petitioner Syed Murtaza Shah, and a P. T. O. was issued in his favour on 1st January, 1960. Dr. Muttaqi, who was the Managing Director of the former Muslim Insurance Company, was removed from that office on account of deliquency. The Administrator, appointed in his place by the Central Government, attached the entire property of Dr. Muttaqi and his family with a view to dispose of the same and to utilize the proceeds for paying off the creditors. He, therefore, by his order dated 15th February, 1961, made under subsection (4) of section 106 of the Insurance Act, 1938, prohibited them or any person claiming under them from transferring or otherwise disposing of any property of the Company in their possession or any property belonging to or deemed to be belonging to any of them. Dr. Muttaqi and others appealed to the Central Government but the same was dismissed. The Administrator thereupon, on 12th May, 1961, filed a petition in this Court being C. O. No. 35 of 1961 under section 106 of the Insurance Act, in which a sum of Rs. 16,61,532-1-1 was claimed against Dr. Muttaqi on the allegation that he had misappropriated the money of the Company. A learned Single Judge of this Court by judgment dated 21st July, 1962 found Dr. Muttaqi to be liable for a sum of Rs. !5,62,074-12-1 together with interest at the rate of 77, per annum. The appeal of Dr. Muttaqi before the Supreme Court was dismissed though the amount of the liability was reduced to Rs. 13,91,241-7-10 and the rate of interest from 7% per annum to 6% per annum with half-yearly rests. (See- judgment in P L D 1971 S C 8).- When the implementation of the above decision was resumed, Dr. Muttaqi and others filed a petition under sec tion 106 (6) of the Insurance Act (C. O. No. 41 of 1970). In the petition one of the grounds taken was that the bungalow at No. 57, Mozang Road, Lahore, did not belong to Dr. Muttaqi as he had gifted i! away to his relations (Syed Murtaza Shah) and that it was even otherwise not his property as no P. T. D. had yet issued in his favour. The contention was repelled by a learned Single Judge for the reason that pr. Muttaqi who had all along been claiming the property to have been his, had no locus standi to raise such objection. The petition was, therefore, dismissed with costs .on 17th September, 1971. An appeal preferred (L. P. A. No. 12-C of 1972) was also dismissed in limine on 7th Decem ber, 1973. It appears that a notice bad in the meantime been issued by the Settlement authorities to Dr. Muttaqi for payment of the price of some area found to be in excess of three times the plinth area of the bungalow. On 28th December, 1973, a second demand notice was received by him. Dr. Muttaqi, having failed thus far to save the property, took advantage of this notice by presenting an agreement of association dated 1st January, 1974, executed in favour of the present petitioner. The agreement (annexure `B') is totally silent about the attachment and the impendiug disposal of the property under orders of the 'Court. By the agreement, Dr . Muttaqi surrendered his entire right of ownership in the bungalow in favour of the petitioner. After recording the state ments of the transferee and the associate in which they stated that the house was free from all encumbrances and that there was no dispute whatsoever in any Court of law, the Deputy Settlement Commissioner by order dabod 15th January, 1974, accepted the agreement and required the associate, Syed Murtaza Shah, to pay up the outstanding dues and on part payment of the same, a Transfer Order was issued in his .favour on 17th January, 1974. Dr. Muttaqi is stated to have died in April, 1974.

3. After having thus obtained the Transfer Order, Syed Murtaza Shah roved an application, i.e. C. M. No. 4/L of 1974, in the aforesaid C. O. No. 35 of 1961, praying for the release of the property from attachment. The application was dismissed with costs by a learned Single Judge on 4th February, 1975, whereupon Syed Murtaza Shah filed an appeal which is L. P. A. No. I-Com./75 which has been heard separately by us.

4. When the fact of the issue of the Transfer Order in favour of Syed Murtaza Shah came to light through the aforesaid C. M. 4-L/74 filed in C. O.-No. 35 of 1961, Major (Rtd.) Nazar Muhammad Mufti, the Official Receiver, took up the matter with the Deputy Settlement Com missioner by filing an application on 11th February, 197.1, seeking the cancellation of the Transfer Order, which the Deputy Settlement Com missioner referred to the Settlement Commissioner (Legal) who passed It on to Settlement Commissioner (Policy). In the meantime the Official Receiver filed a revision petition on 2nd April, 1974, Syed Murtaza Shah contested the petition mainly on the ground that the revision was barred by time and that the Official Receiver was not at, aggrieved person. The learned Settlement Commissioner found that "tile house meaning the plinth area plus its three times had been fully paid for and neither the transferee nor the learned Deputy Settlement Commissioner were competent or ever' simply justified to allow any association." He rejected a re-joinder filed by Syed Murtaxa Shah on 11th May, 1978, requesting for the transfer of tile property in his favour under the new Scheme for the Disposal and Management of Residual Property, on payment of times the original transfer price, upon the view that it was not a question of disposing of a residual property. Fife noticed that Dr. Muttaqi had not only concealed the factum of the Court orders having been passed in respect of the property but had also stated on oath before the Deputy Settlement Commissioner that the house was free from all encumbrances and that there was no dispute whatsoever in any Court of law. Tie, therefore, by invoking his suo mote revisional powers, condoned the delay and set aside the Deputy Settlement Com missioner's order allowing the association. This order, which was passed on 12th August, 1978, is now under challenge in the present Constitutional petition.

5. Major (Rtd.) Ishaq Muhammad Khan, learned counsel for the petitioner, urged before us that :- (i) the revision petition not having been filed within fifteen day of the Deputy Settlement Commissioner's order, or knowledge of that order, was barred by limitation, which in the absence of any application under section 5 of the Limitation Act could not be condoned ` (ii) the Settlement Commissioner had acted without authority in converting the application for revision into a suo mtou revision as no such power was available after the repeat of the Dis placed Persons (Compensation and Rehabilitation) Act with effect from 1st July, 1974 ; (iii) the revision was not competent as the same bad not been filed by a person aggrieved (iv) the Settlement Commissioner's finding that the price of the house with three times its plinth area had been' "fully paid for" was against the record and he was also wrong in holding that the Deputy Settlement Commissioner was not competent to allow the association ; and the attachment of the property, by the Court was illegal because no P T. D. having issued in favour of Dr. Muttaqi, the bungalow had continued to remain in the Compensation Pool and as such immune from any encumberance or :attachment. 6. 1 will take up the first two points which relate to the limitation of the revision and the power of the revising authority to act suo motu. As already mentioned the transfer order had been made on 17th January, 1974, and oft coming to know of it. the official Receiver had submitted an application on 11th February, 1974, seeking the cancella tion of the transfer, which he followed by moving a revision .petition on 2nd April, 1974, which was presented on 4th April, 1974. The formal revision application, was, therefore, clearly beyond fifteen days time prescribed for the purpose. An application under section 5 of the Limitation Act was made belatedly on lst August, 1978. It was, there. fore, urged that under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act. as amended by Act LV of 1973, the application having not been filed within fifteen days was time-barred. Further that on 12th August, 1978, when the impugned order was passed by the Settlement Commissioner, he had no power to act suo moru as the Settlement law had by then been repealed with effect from 1st July, 1974, by Ordinance XV of 1974 which was later replaced by Act XIV of 1975,

7. Section 20 of the Displaced Persons (Compensationand Rehabi litation) Act, as it stood before its amendment by Act LV of 1973, empowered the Settlement Commissioner to call for, the record of any case, at pray time for the purpose of satisfying himself as to the correctness, legality or propriety of an order passed by his subordinate authority. The exercise of the power was not dependent upon the filing of any application by a party. The provision was, however, substitute by the following, by Act LV of 1973, affective from 3G-7-1973 :-- "Z

0. Revision.

(1) A Settlement Commissioner may, either on an application made by a person aggrieved by an order passed by an Assistant Settlement Commissioner, a Deputy Settlement Commissioner or an Additional Settlement Commissioner under this Act, within fifteen days from the date of such order, or of his own motion at any time, call for the record of any case or proceeding for the purpose of satisfying himself as to the correctness, legality or propriety of such order and mad pass such order in relation thereto as he thinks fit. (2) , .... ..... ..... ............................ .. (3) ..... ..... . .................................................... (4) ................. .......... .... .................. (5) In computing the period of fifteen days referred to in subsection (1), the provisions of sections 5 and 12 of the Limitation Act, 1908 (IX of 1908), shall apply." The intention behind the change in the law cannot but be to reduce further litigation by placing a time limit on a party seeking revision of order. But no such limit seas placed on the revising authority if acting] on its own. However, the power under section 5 of the Limitation Act was, available to the revising authority to condone the delay in filing art application. The power tinder section 5 is not dependent upon an application filed for the purpose out upon the satisfaction of the Court that) there was sufficient cause for condoning the delay. It is to be noted that the Settlement Commissioner invoked his .ruo moru revisional jurisdiction first to condone the delay in bringing up the revision application and then to set aside the order of the Deputy Settlement Commissioner dated 15-1-197.1, whereby he had accepted the agreement of association. But the learned Settlement Commissioner bad hardly any need to invoke his suo moru power, for he could entertain the application once be had condoned the delay. He could condone the delay even in the absence of any application moved for the purpose, though in the instant case an application had actually been made even if belatedly, on 1-8-1978. The objection of the exercise of suo motu jurisdiction on the ground that the same was not available after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, is misconceived. The law had been repealed by Act XLV of 1975 but with the saving that all matters which-were pending at the time of the repeal or would be remanded by the Supreme Court or the High Court after the repeal would be disposed of by the notified authority "in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate." This repealing Act had taken effect on 1-7-1974, by which date the revision had already been instituted and as such the same was saved and had to be disposed of in accordance with the provisions of the repealed Act. The power to act suo motu was contained in the repealed Act and was as such available to the revising authority already in seisin of the matter. Learned Counsel, however, relying on Sardar Ashig Muhammad, Khan Mazari, etc. v. Chairman, Federal Land Commission, Islamabad. etc. (P L D 1977 Lah. 461) and Muhammad Aslam Khan, etc. v. Federal Land Commission etc. (P L D 1976 Pesh. 60) insisted that suo motu power could not be exercised in a proceeding initiated on an application. Both these authorities proceed from an interpretation of para. 29 of the Land Reforms Regulation (M. L. R. 115). By this para. ;9, the authorised person is conferred the power to revise on his own motion or on the application of an aggrieved person, but two separate time limits are prescribed for calling for the record, i. e. before 1-1-8-1974 (the time was later: extended) in case of suo motu action and 60 days in case of an application made by an aggrieved person. It was observed in the first-cited case :- "In the case in hand, different periods of limitation have been prescribed for the purpose of suo motu action and action on the presentation of an application .. ...In other words, a person aggrieved presenting an application for action under para graph 29 after -the period of limitation has expired, cannot ask the authority to proceed with the matters as if it was acting on its own motion." In the second-cited case, it was expressed that :- "When a law has provided a particular mode the action has to be taken accordingly anal in no other way suo motu powers can only he exercised in which no application has been made at all." It is, of course, nobody's case that a party has a right to ask the authority to act on its own. We must, however, say with due respect that the provision of section 20 of the Displaced Persons. (Compensation and Rehabilitation) Act, does not appear to us to imply two parallel revisional jurisdictions, one on an application and the other suo motu. It is in keeping with the objective of the Settlement policy that wider powers were given to the revising authority. The basic purpose seems to be that the revising authority. if satisfied, whether on an application or otherwise, that there is need for correction, then it is under a duty to)p act, and the fact that the matter had been initiated on an application', would not oust his suo motu jurisdiction. Any interpretation of section 20/ that the filing of an application by a party would negate the suo motu power of the authority, would conflict with the Settlement policy by frus trating the corrective action intended by that policy. In any case, the controversy is merely academic because the revising authority, in our view did not need to act suo motu. He had otherwise power under section 20 to pass the impugned order on the revision application.

9. Learned counsel argued a good deal on the question of the competency of the revision application on the ground of its having been filed not by a person aggrieved. He cited a number of authorities to support his contention that for the purposes. of bringing a revision, an aggrieved person is one who is an applicant for or has a right to the transfer of the property in his favour. Since the Official Receiver did not himself seek transfer of the property, he could not, according to the submissions made, be an aggrieved person. Ordinarily, the contention would deserve consideration but on the peculiar facts of the matter before me; it has no weight. The Official Receiver- is possessed of a order of the Court for .attachment and eventual sale of the property satisfaction of a claim. Dr. Muttaqi had agitated upto the Supreme Court but had failed. Any attempt on his part thereafter to alienate the property so as to defeat the claim would certainly give a cause to the Official Receiver. It cannot be said that the Official Receiver had no interest in the property or was not affected adversely by the acceptance the agreement. '

10. The fourth point relates to the competency of the Settlement authorities to accept the agreement of association. It appears from the impugned order that Dr. Muttaqi had pursuant to the issuance of P.T,O. in his favour paid the entire price of the property as demanded from him including Rs. 672 on account of settlement fee, the latter amount having been paid by treasury challan dated 2-7-1960. It also appears that by some confusion he had again deposited the settlement-fee on 9-11-1960 and then requested for its refund. This request for refund would go to show that according to Dr. Muttaqi's knowledge and reckon. ing, there had been nothing outstanding against him on account of the price of the house. Dr. Muttaqi had himself asserted in his statement made before the D. S. C-I on 9-1-1974 :- However, by a later calculation made by 'the Department, a sum of Rs. 1,000 was found still - due from him, A further demand of Rs. 24,560 was made on account of some area found to be in excess of three times the plinth area and Rs. 2434, on account of rent for this excess area. It is to be noted that any area in excess of three times the plinth area is not to be treated as part of the house. The second provsion to the definition of "House" in subsection (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, reads "Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including outhouses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house." Dr. Muttaqi was, therefore, under no duty to take and to make payment for the excess area. Since he had according to the earlier demand, already made full payment, a P. T. D. should have issued in his favour in the ordinary routine. The learned Settlement Commissioner had rightly observed that :- "There is then some mysterious inactivity both on the part of the transferee and officials concerned, viz.--a-viz non-issuance of P. T. D. in favour of the transferee." In any case If a sum of Rs. 1 ,000 was still found due, Dr. Muttaqi who had already paid Rs. 1,33,400 plus the settlement-fee, would hardly need to enter into an agreement of association surrendering his entire right of ownership in the bungalow. The agreement, therefore, could be for no other purpose than to avoid the order of the Court regarding the attach ment and sale of the property and, thus, to defeat the claim. It is not irrelevant to note here that Dr. Muttaqi bad first come out with a statement that he had gifted away the property in favour of the petitioner. When that assertion did not work, the new device of the association was adopted.

11. Even if far. Mutaqi could at the late stage enter into an 'agree ment, the question anscs whether the associate could escape the liabili ties of Dr. Muttaqi ire respect of the property. Learned counsel con tended vigorously that until the issuance of a P. T. D., the property is, in law, free from every encumberance, that a P. T. D.-holder at least receives it free from any encumberance and that the Settlement authorities were not bound by the order of the Court, if any, in respect of the property which was still in the Pool. It was further argued that the delinquency of Dr. Muttaqi, if any, was his personal liability which could ,not extend to the property still in the Pool and thus the attachment order against Dr. Muttaqi could cover only the amount deposited by him for the property and not the property itself. For these contentions, learned counsel referred to sections 7 and 25 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958. Section 7, read :- "No property which form part of any of the pools constituted under this Chapter shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order or by any other process of Court or other authority." Section 25 bars the jurisdiction of Court in .respect of any matter governed by the Act. A similar objection raised by Dr. Muttaqi in the earlier litigation had been repelled for the reason that be had no locus stands to raise the same. The basic question is whether the petitioner has acquired by the transfer order issued in his favour, any right in the property independent of that of Dr. Muttaqi. The petitioner had not' been a claimant for transfer of the property before the Settlement authorities. He had gone there only on the strength of the agreement of association and as such he had merely substituted the actual transferee. This means that as regards an adjudication as to the entitlement to the transfer, the same had been completed and concluded in favour of Dr. Muttaqi. The facility of associating another in the transfer had bee given to enable the transferee to pay the price, for which purpose he could surrender his right in part or full in the property in favour o the associate. The associate, therefore, is merely a substitute of the transferee and has no right independent of the latter. Had the petitioner been transferred the property on the basis of his own entitlement and to the exclusion and ouster of Dr. Muttaqi, the contention could have merit. But this is not the fact here. In this contention, I may reproduce the following observation from the judgment in L. P. A. No. 1178 of 1966 :- ....the interest which the associates share is that of the transferee or the person entitled to the transfer. It can be less than that interest but it cannot ever exceed it. It is a direct transfer of interest from a person entitled to the transfer in favour of another who after observance of formalities becomes an associate. The intervention of the Settlement Authori ty is only for sanctifying such association and either for placing it under any limitation not inherent in the transaction or approving it conditionally, Hi plays a role not very different than that of Registrar, where a transaction is required by law to take place by a registered document. He has to satisfy himself about the identity of the parties, the property to be transferred, the nature and extent of interest affected by the transaction, its bona de, the considerations and, the observance of the laws applicable to the transaction. There is, therefore, for the purposes of the application of this doctrine of distinguishing in the situation." The above observation will apply here with greater force 'considering the fact that the agreement had been entered into during the pendency of the attachment under the Insurance Act. ,

12. As an agreement of association is subject to acceptance by the concerned authority the authority can in appropriate cases refuse to accept it. It appears from the Settlement file that Dr. Muttaqi in his statement made before the D. S. C.-I, on 9-1-1974, in connection with the acceptance of the agreement, had stated :- The petitioner had also made his statement there the same day in which he had accepted the correctness of the statement made by-Dr. Muttaqi. The Deputy Settlement Commissioner, as is obvious from his order dated 11-4-1974, had acted on the assumption of the truth of these statements. But the statements were on the face of the facts not true to the knowledge of either or the petitioner who had both been party to the . Muttaqlitigation - which had culminated in L. P. A. No. 12-C/72, decided on 7-12-1973. From an application made by the Chartered Bank before the revising authority, it appears that the house in question "was the subject matter of an equitable mortgage in favour of the applicant-Bank evidenced by a Memorandum of Deposit of Title Deeds dated 6-?.1951 as security for the indebtedness of the deceased Dr. M. S. Muttaqi." This fact had been duly noted by the revising authority in the words "This is established beyond doubt and an admitted fact that Dr. M. S.. Muttaqi did mortgaged the property in dispute to the Chartered Bank for, a consideration of Rs. 75,

000. He oven deposited his P. T. O. for this property with the Bank. Learned counsel, however, tried to explain that the transferee was required to disclose only the fact if a proceeding relating to the transfer of the property was pending before any compe tent Authority or Court and that as no case regarding the transfer of the property itself bad been pending before any Authority or Court. the statement was true. In this connection he referred to para. 1(2) of reconstituted Scheme No. VIII. But the statements were not being made under that Scheme. The fact therefore, remains that the factum of the mortgage of the property by Dr. Muttaqi and of the subsistence of an order of attachment of the property which had become binding as against Dr. Muttaqi and his then donee, the petitioner, had been suppres sed from the Settlement Authority, who not being a party to the earlier litigation, had no knowledge of it. The acceptance of the agreement in view of this conduct could be refused. Such conduct is also not irrele vant to the question of grant of discretionary relief in the present constitutional jurisdiction in favour of the party guilty of that conduct

13. Any claim to immunity from interference by Settlement Autho rity after issuance of a transfer order would be hardly warranted because the transfer order was subject to revision.

14. An attempt was made to justify the transfer in favour of the petitioner under Scheme No. VIII read with the 1977-Scheme. Scheme No. VIll had been reconstituted on 13th January, 1973 (P L D 1973 Pb. Statutes 256), and subsequently further amended on 16th October, 1973 (P L D 1914 Pb: Statutes 82), 19th October, 1973, 20th October, 1973 fibid 83) and 12th June, 1974 (ibid 195). After the repeal of the Evacuee laws by Act XIV of 1975, a Scheme was notified on 31st January, 1977, known as "Scheme for the Management and Disposal of Available Urban Properties" (P L D 1977 Ph. St. 62). But all in these, the condition to transfer is (i) that the property should be "available" and (ii) that there should be an application made by the transferee. "Available property", according to the definition given in these laws, is a property which is available for disposal on the relevant date or which may there after become available by resumption or otherwise. The property in the case before me cannot, by any test of the definitions, be termed to be an "available property" because its transfer in favour of Dr. Muttaqi had long been decided, which decision has never been in challenge. No. l had the property been resumed thereafter. 1t is also not the petitioner's case that he had made, any application for its transfer. Neither the K reconstituted Scheme No. VIII, nor the Scheme of 1977 is, thus, appli cable to the case and no claim can be founded on the basis of the same. The revising authority had, therefore, rightly rejected the petitioner's claim to transfer under this Scheme.

15. The last point urged by learned counsel is not available to the petitioner. The order of attachment which had been upheld upto the Supreme Court, cannot be reagitated by the ,petitioner, who derives his title in the property through Dr. Muttaqi and who had himself been a party in L. P. A. No. 12-C.72.

16. The Writ Petition. therefore. fails and is accordingly dismissed in limine. S. A. H. Petition dismissed.