1988 PLP 662 (MLD)

Ch. Oader Bakhsh for Petitioner. Nemo for Respondents Nos. 1 to

4. Shaukat All Malik for Respondent No.

5. Date of hearing: 30th June, 1975. Rehmat Ullah alias Rehmat All was a non-claimant displaced person in possession of a house consisting of one room forming part of property No. S-53-R-4, Mission Road Lahore since 1947. The monthly rent of this room is Rs. 3 p.m. and its price determined on evaluation basis would conic to Rs. 1,

440. It appears that Rehmat Ullah did not file any form, in the first instance for transfer and the room was auctioned on 23-12-1961. The auction-purchaser, however, backed out. Rehmatullah filed a NCH form No. 232 under Settlement Scheme No. VIII on 15-10-1966. The auction aforementioned was, finally, cancelled and property resumed from the auction purchaser vide order dated 13-8-1968. Without disposal of the petitioner's NCH form, the property was, again, put on the auction list published on 25-9-1968. Rehmatullah filed an application for deletion of the property from the auction list. The Deputy - Settlement Commissioner recommended the deletion. The Additional Commissioner, however, on 28-9-1968 ordered that the auction should proceed but without prejudice to the rights of the applicant. Rehmatullah filed an appeal and the Settlement Commissioner observed that the Additional Settlement Commissioner had rightly ordered that the auction should proceed but without prejudice to the rights of the appellant and, therefore. the appellant had no cause of action. He ordered that the confirmation of auction shall be stayed till the appellant's NCH form was disposed of on merits and, if he was found entitled to transfer, the auction should not be confirmed. This is vide order dated 29-11-1968. The Deputy Settlement Commissioner took up the matter of the disposal of Rehmatullah's form and called upon him to clear the arrears of rent from 21-12-1947 to 28-2-1969 which was done by payment of Rs. 455 on 10-3-1969. The Deputy Settlement Commissioner found that Rehmatullah was in undisputed possession of the house since 1947, had put in NCH form, cleared the arrears of rent and there was no contestant for its transfer. He, thus, ` recommended the transfer in favour of Rehmatullah to the Additional Settlement Commissioner. The Additional Settlement Commissioner took up the case and observed that the property was resumed from the first auction-purchaser on 13-8-1968 and that it was not understood how the applicant filed NCH form on 15-10-1966 i.e. twenty-two months before the property actually became available. Thus, he rejected the NCH form of Rehmatullah vide his-order dated 3-4-1969. He confirmed the auction in favour of the respondent No. 4 who had purchased the property on 2-10-1968 vide order on 5-4-1969. Rehmatullah filed a revision petition which was rejected on the ground that the property was not available for transfer when the petitioner had applied for transfer under Settlement Scheme No. VIII on 15-10-1966 as the previous auction proceedings were still subsisting and the property was resumed only on 13-8-1968. f-le, thus, dismissed the revision petition vide order dated 13-6-1960. Rehmatullah challenged these orders by means of a petition under Article 98 of the late Constitution of 1962 filed on 25-5-1970. Rehmatullah had died during the pendency of this petition and is represented by his heirs.

2. Learned counsel appearing for the petitioners has submitted that the petitioners predecessors-in-interest had been non-suited on the ground that he had filed an NCH form on 15-10-1966 when the property was not resumed from the first-auction purchaser until 13-8-1968, and, thus his form was not competent. Learned counsel contends that the orders suffer from errors of law on the face of the record in so far as that, firstly, when the petitioner filed NCH form on 15-10-1966, if the Settlement authorities had acted in accordance with the provisions of the Settlement Scheme No. 1, which mutatis mutandis applied, in disposing of that form, the petitioner would have been informed that he had yet to await for the formal order of resumption of the property from first auction ?purchaser who had not paid the dues since the auction of 1961 upto-1966 and, that after the order was passed in that behalf, the petitioner could claim transfer.

3. It is, next, contended that when the property was, in fact, resumed on 13-8-1968, the petitioner's form filed earlier was still pending adjudication and the ''Settlement authorities were under a legal obligation to dispose of the same at that time. It is submitted that if they had taken up the form of the petitioner for disposal and had found that it was defective because it had been filed earlier than resumption order, the Settlement authorities should have pointed out the objections as required by para. 7 of the Settlement Scheme No. I which the petitioner could have removed by simply correcting the date. Lastly, the learned counsel submits that the original applicant Rehmatullah alias Rehmat Ali, had died during the pendency of the present petition and his successors who consist of a widow and minor children and who represent him now are living in this house since the creation of the country and, therefore, rejection of their predecessor's form would make them destitute all over again simply on hypertechnical ground of filing of the form at a date earlier than it should have been done.

4. Learned counsel for the respondent No. 5 has submitted that the orders of the Settlement authorities have been passed within the jurisdiction vesting in them and, therefore, these are not liable to be interfered with. It is, next, contended that the petition suffers from laches as the last impugned order was passed on 13-6-1967 and the present petition was not filed until 2-3-1970. Learned counsel also contends that the petitioners arc not entitled to relief in so far as that their predecessor did not apply for the transfer of the property under the Settlement Scheme No. I and, therefore, it is clear that he was not interested in the house.

5. There is no denying the fact that the petitioners' predecessor-in-interest did not apply for the transfer of the house in question under Settlement Scheme No. I and the same was also auctioned in 1961. It was only on 15-10-1966 that he filed NCH form for transfer. No doubt, by this lime the property stood transferred to the first auction purchaser and had not yet been resumed from the latter. Yet, if the form of the petitioner had been taken up by the Settlement authorities in accordance with law, it would have been pointed out to him that his form was premature, and, he could have waited for the time when the property was resumed from the first auction-purchaser. The form was not disposed of, nor rejected, but, was kept pending. When the property was, in fact, resumed on 13-8-1968 the form of the petitioners' .predecessor for transfer of the property should have been taken up and proceeded with in accordance with law. This, too, was not done and the Settlement author ides hurried to dispose of the property by putting the same, again, to auction. The petitioners' predecessor moved the authorities that he had been in possession of the house and had applied for the same. The Deputy Settlement Commissioner found the facts in his favour and recommended that the property may not be auctioned. The Additional Settlement Commissioner although did not stay the auction, yet, he ensured the safety of the rights of the applicant by ordering that the auction shall not prejudice his rights. The NCH form was, finally, taken up by the Deputy Settlement Commissioner who found the applicant to be entitled to the transfer and, consequently, called upon him to clear the arrears of rent which the applicant did. The Deputy Settlement Commissioner could have passed a final order on the form of the applicant, but, he submitted the case to the Additional Settlement Commissioner, probably for the reason that the auction, meanwhile conducted, was subject to confirmation by the Additional Settlement Commissioner and had not yet been confirmed. The Additional Settlement Commissioner, however, on hyper?technical reason rejected the NCH form on the ground that the applicant had filed the NCH form twenty-two months earlier than the resumption order. Now, whether the applicant had Filed the form twenty-two months earlier was not material, what was material was that, at the time when the property was put for re-auction whether the form was there for disposal. It had to be, then, determined whether the applicant was entitled to the transfer of the property or not. If there was any defect m the form, that had to be pointed out in accordance with law. If the correct procedure had been followed and the application for deletion from the second auction had been dealt with on its merits without hurrying up with the auction, the petitioners' predecessor-in-interest would have been transferred the house in his possession since after partition and there was no earthly reason to deprive him thereof. On merits, he had never been found to be not entitled. The reason advanced by the Settlement Authorities for depriving the petitioners' predecessor-in-interest is ex facie shorn of justice and is altogether unsubstantial. A In the case of Khan Karamat Ali Khan v. The Settlement Commissioner, Multan Division and others P L D 1968 Lah. 626 it was observed that the entire process of inviting applications for the transfer of immovable property on evaluation basis or otherwise, the submission, receipt and scrutiny of such applications and determination of the entitlement of the applicants to the transfer of specific properties as well as the determination of the amounts payable by the transferees can be validly made under the Scheme promulgated under section 16 of the Act even without the properties having been actually acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation), Act, 1958. Now, if applications for transfer can be filed and processed before acquisition of the property and their coming into Compensation pool, certainly, an application can be filed when the property was still in the Compensation pool and had not finally gone out of the Compensation pool. Moreover, a perusal of the definition of the available property under the Settlement Scheme No. VIII in para. No. 1(a) would l show that the available properties, means "houses, shops, building sites, industrial concerns and cinema houses (whether allotted by the Industries Rehabilitation Board or not) and big mansions and hotels which have not yet been transferred to any person, or, which may in future become available for transfer on resumption to be made under Chapter II of this Scheme". In the present case, the application of the petitioners' predecessor was in anticipation of the resumption order which was quite likely to be passed in the circumstances of the case.

6. In the circumstances of the case, the deprivation of the petitioners from the house in their possession since 1947 on too technical grounds is arbitrary and without lawful authority. Contentions of the learned Counsel for the respondent No. 5 have no force as neither the petition suffers from inordinate delay in the circumstances of the case nor, the petitioners' predecessor-in-interest was debarred to apply subsequently, even if he had not `applied in the first instance. The impugned orders etc, therefore, are declared to be without lawful authority and of no legal effect. Since the contesting respondent No. 5 had been landed into litigation on account of illegal order of the Settlement Authorities he, too, like, the petitioner, shall have his costs from the Settlement authorities. M.AX/3199/1? Petition accepted.