1998 PLP 2468 (SCMR)

CH. MUHAMMAD ARIF, J.

Leave to appeal is sought against the judgment dated 18-11-1996 whereby the Lahore High Court, Lahore dismissed petitioner's Constitution petition bearing W.P. No.334-R/1984.

2. The background in which the instant petition has been made here is that he was allotted Ihata/Plot No.SW-102-R-49/51 measuring 2 Kanals, 12 Marlas 202 Sft. of Khasra Nos.2862 and 2864 in Krishan Nagar, Lahore by DRC (A), Lahore vide order dated 12-7-1956. This Ihata/Plot was transferred to him by Deputy Settlement Commissioner Circle II, under Settlement Scheme No.VI on 15-2-1961. Permanent Transfer Deed was also issued in his favour after the payment of transfer price therefore, on 21-6-1962. According to the petitioner, a Patwari was deputed to hand over the possession of Ihata/plot and he reported that respondent No.3-Akbar Ali was interfering in the said process. SHO, Police Station Mozang, Lahore was directed by the Deputy Settlement Commissioner through letter dated 25-6-1962 to render police help to the Patwari. in that regard. Thereafter, the petitioner obtained the possession on 27-6-1962. Respondent No.3 had challenged order dated 15-2-1961 and- the learned Additional Settlement and Rehabilitation Commissioner had condoned the delay of 3 days and cancelled the PTD of the petitioner vide order dated 30-9-1963 on the ground that at the time of its issue in June, 1962 the evacuee status of the property was pending determination before the Custodian Evacuee Property to whom the High Court had made a reference vide orders dated 3-3-1961 made in a Criminal Revision filed by respondent No.3 (and others) against the State and the petitioner. He also held that respondent No.3 having filed a Form under Settlement Scheme No.VI vide Receipt No.1989 dated 30-11-1959. Respondent No.3, according to the petitioner, had forcibly occupied a portion of the disputed plot in 1965 and was convicted on petitioner's case against him under section 447/147, P.P.C. by a Magistrate on 28-8-1967, and sentenced to 2 months' imprisonment. Respondent No.3 failed in his appeal before the Additional Sessions Judge on 22-5-1969 but succeeded in his revision before. the High Court vide judgment dated 8-9-1980. Petitioner had challenged the transfer of Plot No.2864 to respondent-Akbar Ali by DSC on 27-12-1969 through a Revision before the then Settlement Commissioner, who, vide order dated 24-1-1974, held that the transfer was sans the submission of any Form by the said respondent and, therefore, the plot was directed to be included in the auction schedule. It was on 15-1-1977 that on respondent-Akbar Ali's alleged Form under Settlement Scheme No.VIII that this plot was transferred to him by the then DSC. This order was recalled by the Settlement Commissioner in suo moto revisional jurisdiction on 20-2-1980 whereafter, the Deputy Settlement Commissioner cancelled the transfer of Plot No.2864 froiri the name of Akbar Ali on 18-3-1982. As the Residual Property Scheme had been enforced, respondent-Akbar Ali once again sought transfer of Plot No.2864 on the basis of his Residual Property Form No.454 dated 8-10-1977 and Deputy Administrator (R.P) vide order dated 30-7-1983 transferred the plot in question to respondent No-3. As the petitioner had not been summoned by the DSC concerned while disposing of the other side's R.P. Form although his own Form was also pending regarding the same property, the petitioner succeeded in his Revision Petition against the order of the Deputy Administrator (R..P.) dated 30-7-1983. In these proceedings, the transfer favouring respondent No.3 was cancelled and plot was ordered to be auctioned in due course, as held by the then Settlement Commissioner on 24-1-1984. This happened on 2-4-1984. Respondent-Akbar Ali filed Writ Petition No, 154-R/84 and the petitioner also filed Writ Petition No.334-R/84 against the order of the Administrator/Residual Property dated 2-4-1984. These causes were taken up together and disposed as such by the learned Judge in Chamber vide the impugned judgment. The Constitution petition filed by respondent-Akbar Ali was allowed and that of the petitioner was dismissed. Hence this petition.

3. The impugned judgment proceeded to non-suit the petitioner on the ground that: "Admittedly public street intervenes between the two plots. He never came in possession of the disputed plot and did not qualify for transfer of the same either in terms of Settlement Scheme No. VI or the scheme presently in vogue (Residual Property Scheme)". Respondent Akbar Ali succeeded in the cause and the learned Judge in Chamber held that although there was an order for the disposal of the disputed plot through public auction but: "..the proposed auction admittedly did not take place later on. Akbar Ali continuously remained in possession thereof and. there is no denial to the fact that he has raised construction on it. A fresh right to seek transfer of the disputed plot was created in his favour on the enforcement of Residual Property Scheme..."

4. Mr. Khawaja Muhammad Afzal, learned counsel for the petitioner and Mr. S.M. Nasim, learned counsel for the caveator/respondent No.3 have been heard. So has been Mr. Hamid Aslam Qureshi, learned AOR for Muhammad Yasin, in latter's application under Order V, Rule 2 (2) of the Supreme Court Rules, 1980 seeking impleadment in the case vide application dated 6-4-1998.

5. After hearing the learned AOR in application dated 6-4-1998, we are not impressed with the plea being raised that as he has been litigating under various disciplines up to this Court (in some ejectment matter between him and respondent-Akbar Ali) as also that the property in dispute is a public park and litigation between the applicant and the said respondent "had been going on (for) some time past regarding the portion of the property in dispute in possession of the applicant", as it hardly confers any right on him to seek his impleadment in this cause, here. He was not a party to the litigation, in the past, betwixt the petitioner and respondent No.3 before the Settlement Department in relation tp the transfer of the same to either one of them. The application is misconceived and is dismissed.

6. Attending to the respective arguments advanced on behalf of the learned counsel for the parties, it may be observed at the very outset that they are one on the question that their respective claims to the disputed Plot/Ihata was to be decided under Settlement Scheme No. VI issued under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 keeping in view the Evacuee Property and Displaced Persons Laws (Repeal) Act (No.XIV of 1975) as also the provisions of the Scheme for Management and Disposal of Available Urban Properties, 1977. We find that respondent No.3/Akbar Ali succeeded in the litigation on the twin-ground that he remained continuously in possession and as he had raised construction on it a fresh right had accrued in his favour when the Residual Property Scheme was promulgated. There is no force in the plea raised on behalf of the petitioner that as the then Settlement Commissioner directed the auction of the disputed plot on 24-1-1984, therefore, the petitioner would be entitled to the disputed Plot/Ihata on account of his having submitted his own Form which was not considered by the concerned quarters. This argument loses sight of the admitted fact that the learned Judge in Chambers duly noticed the enforcement of Residual Property Scheme after the cancellation of the earlier transfer, favouring respondent No.3, on 18-3-1982. Even the cancellation of A PTD issued in favour of respondent-Akbar Ali was noticed and it was rightly held that as no auction could take place under the order of the then Settlement Commissioner dated 24-10-1974, the promulgation of the Residual Property Scheme revived his right to successfully claim the disputed plot as "available property" within the purview of its definition contained in para. 1(c) of Chapter I of the Scheme for Management and Disposal of Available Urban Properties, enforced by the Government in terms of section 3(I) A(a) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

7. Moreover. it is not the case of the petitioner that, as held in Muhammad Ashraf Khan and others v. Administrator (RP)/Settlement Commissioner. Lahore Division, Lahore and others (1987 SCMR 1358), if a property ordered to be publicly auctioned is not subjected to such course before the repeal of the enactment in question the order of action simpliciter does either create or declare any vested right in an individual other than the one who is qualified to obtain the same as available property after its vestiture and transfer to the Provincial Government.

8. Looked at from whatever angle the order impugned in this petition is not liable to be interfered with in these proceedings. Moreso when no question of general public importance has even so much as been alluded to by and on behalf of the petitioner.

9. Resultantly, this petition is dismissed and leave refused. K.A./A-95/S Leave refused.