P L D 1976 Supreme Court 214 (PLP)

Nevertheless, on the 7th of September 3960, the said Deputy Settlement Commissioner transferred the entire house to respondent Niaz Begum and a Provisional Transfer Order was issued to her in October 1960. It may be noted here that the Deputy Settlement Commissioner found that the property find been in possession of Begum Wazir Ahmad, Niaz Begum, Sodagar and one other and that Begum Wazir Ahmad had been using the property as a school which was registered with the Registrar of the Joint Stock Companies and was receiving aid from the Central Government, but it was not recognized by the University. The Deputy Settlement Commissioner, ‑however, observed that the C. H. Form submitted by Begum Wazir Ahmad was in her own name and that she admitted that she had been transferred .another evacuee house. It was further observed : "Had she applied for the transfer of this ,school on behalf of the registered society running this school . . . . it might have been considered under the policy as announced by the Chief Settlement Commissioner". The appellant and respondent Sodagar each filed an appeal before the Additional Settlement Commissioner. By an order dated the 23rd of November 1961, the appeal of Sodagar was allowed and he was given the portion in his occupation. The appeal of the appellant, however, was dismissed and the rest of the house was transferred to respondent Mst. Niaz Begum. Among other things the Additional Settlement Commissioner observed that the main building of the property was shared by Begum Wazir Ahmad and Mst. Niaz Begum, and that the front portion consisting of five rooms and one verandah was in the occupation of Begum Wazir Ahmad who had been using the portion for Industrial Home. Three revision petitions, one each by respondents Niaz Begum and Sodagar, and one by the appellant were filed before the Settlement Commissioner. Another revision petition by one Muhammad Yaqub, who is no more in the picture, was also filed. The Settlement Com missioner by his order dated the 17th of July 1964, allowed the revision petition of the appellant and rejected those of the others. Earlier, the Settlement Commissioner had inspected the spot and found that there was a school in the name of Begum Wazir Ahmad Industrial Home situated in the front portion of the house which had been registered by the Assistant Registrar, Joint Stock Companies, Lahore Region. The school was aided by the Central as well as the Provincial Governments. On a consi deration of the said C. H. Form put in by Begum Wazir Ahmad as well as her statement before the Deputy Settlement Commissioner and the affidavit . dated the 15th of June 1964, filed by her before the Settlement Commissioner (vide pages 93‑96 of the Settlement Commissioner's file) it was found by him that Begum Wazir Ahmad, in fact, applied for the transfer of the disputed portion in the name of Begum Wazir Ahmad Industrial Home and not in her personal capacity. The affidavit, inter alia, categorically stated that Begum Wazir Ahmad had applied for the transfer of the house in the name of the Industrial Home and not in her individual or personal capacity and not in her own right. It may at once be stated here that the observa tions of the Settlement Commissioner that Begum Wazir Ahmad signed the C. H. Form as President of the Industrial Home is not factually accurate but this was a legitimate inference from the foregoing facts and circumstances. This inaccuracy, however, does not seem to me to have, in any way, affected the material facts and the findings based thereon. The Settlement Com missioner further observed that the property was burnt and he, therefore. appeared to have accepted the contention advanced on behalf of the school that it bad spent a considerable amount on its repairs. Thus, on a consideration of the relevant facts and circumstances of the case the Settle ment Commissioner came to a definite finding that the transfer of the disputed portion was applied for on behalf of the appellant Home and that it was entitled to the transfer. The disputed portion was accordingly transferred to the appellant. Furthermore the transfer in favour of Sodagar of the portion in his occupation was maintained as the Settlement Commissioner agreed with the finding of the Additional Settlement Com missioner that it was quite independent. Respondent Niaz Begum was allowed to retain the portion which was in her occupation. In my opinion this was a fair, just and faultless order. Respondent Niaz Begum felt aggrieved by the order of the Settlement Commissioner and accordingly filed a constitution petition before the High. Court under Article 98 of the Constitution of 1962. In this constitution petition Begum Wazir Ahmad was impleaded as a respondent in her personal capacity. Sodagar and the Settlement Commissioner were the other respondents in the petition. In obedience to an order of the High Court the Deputy Settlement Commissioner sent a report which, inter alia. disclosed that respondent Niaz Begum had occupied the house on the 1 st of February 1956, but by tampering the year was changed into '1948' and that she was in unauthorised possession. The report also stated that the front portion of the house stood allotted to Begum Wazir Ahmad Incharge Industrial School since May 1956. Begum Wazir Ahmad filed a written statement in the constitution petition, and, inter alia, objected to the non‑impleadment of the transferee of the disputed portion of the property, namely, Begum Wazir Ahmad Industrial Home, the appellant herein. The learned Judges of the High Court upset the findings of the Settlement Commissioner and held that Begum Wazir Ahmad had applied for the transfer of the property in dispute in her own personal name. The constitution petition was accordingly allowed. It appears that the arguments before the High Court concluded on the 18th of April 1967, and the impugned judgment was delivered on the 22nd of February 1968. Respondent Mst. Niaz Begum says she is a displaced person and‑, occupied the house after migration to Pakistan. She claims that the house was allotted to her in May 1948, but no allotment order appears to have been produced by her. She admitted that the appellant occupied the front portion of the house in 1956. The respondent stated that after the house bad been transferred to her by the Deputy Settlement Commissioner on the 7th of September 1960, she entered into an agreement of association with respondent Mst. Razia Begum and surrendered in her favour the disputed portion. The agreement of association does not appear to have been ever placed on record although a photostat copy appears to have been filed. It appears from the record that the association was subject to the condition that if the transferee, namely, Mst. Niaz Begum lost the case in appeal or revision, the deed of association would be deemed cancelled. As a matter of fact when the Settlement Commissioner finally decided the case on the 17th of July 1964, and Mst. Niaz Begum lost the case, Mst. Niaz Begum . applied for cancellation of the Provisional Transfer Order (vide original record at page 175), which had in the meantime been issued to Mst. Razia Begum. The record shows that the Provisional Transfer Order was being recalled for cancellation. Mst. Niaz Begum admitted that Begum Wazir Abmad had filed a written statement in the High Court and that a report was filed by the Deputy Settlement Commissioner in obedience to an order of the Court. In ground No. (a) of her concise statement the respondent admits that the disputed portion of the house had been allotted to "Begum Wazir Ahmad Incharge Industrial School, Lahore". She, however, denied that the appellant sought transfer as industrial school or converted property. She alleged that the appellant bad used this device to get transfer of the disputed portion after her claim had been rejected by the Deputy Settlement Commissioner on the 7th of September 1960. In para. (c) of her concise statement she admits that under the Press Note dated the 3rd of May 1960, the Additional Settlement Commissioner was delegated the power to decide about the transfer of the converted property and that he alone was the competent authority in the matter of such transfer. She, however, stated that the order of the Additional Settlement Com missioner refusing to transfer the disputed portion to the appellant was final and that the Settlement Commissioner was not competent to interfere with this refusal. Furthermore that the appellant's case was not covered by the said Press Note inasmuch as it was not recognized by the Educational Authorities on the target date i.e. 20th of December 1958. Respondent Mst. Niaz Begum died during the pendency of the appeal before this Court and her legal heirs sought permission to withdraw the concise statement. In their concise statement the heirs of respondent Niaz Begum said that respondent Razia Begum had no right, title or interest in the disputed property. Mian Nusratullah, learned Advocate appearing on behalf of the appellant has contended that the Settlement Commissioner had on a considera tion of all the relevant materials come to the finding that Begum Wazir Ahmad had applied for the transfer of the disputed portion on behalf of Begum Wazir Ahmad Industrial Home (the appellant herein). He has argued that the Settlement Commissioner was fully competent to arrive at this finding and to pass the order transferring the disputed property to the appellant. Under the law the Settlement Authority had exclusive jurisdiction to deal with such matters and, therefore, the High Court in the exercise of its constitutional jurisdiction could not have interfered with the order of the Settlement Commissioner and his findings of fact. The learned Advocate has next contended that the Press Note dated ,the 3rd of May 1960, fully covers the case of the appellant. In this context he has argued that the property having been found to be a converted one the Deputy Settlement Commissioner was required to refer the matter to the Additional Settlement Commissioner who alone was competent to deal with the matter. I think the first contention must be accepted. On reference to the different orders passed by the Settlement Authorities it appears that none of them except the Settlement Commissioner had applied his mind to all the relevant materials in coming to the finding that the application for transfer had been made on behalf of the appellant Home and not by Begum Wazir Ahmad in her personal capacity. These materials are as follows : (1) The C. H. form itself mentions the fact that the house was in possession and was being used as an Industrial Home for destitute and poor women. It also says that the allotment order was made on the 31st of October, 1952. In columns Nos. 15 and 16 of the Form Begum Wazir Ahmad had frankly stated that another evacuee property had been allotted to her and she gave particulars of the transfer order in regard to the property. It is pertinent to mention here that if she was a dishonest person and wanted somehow to grab A the property in dispute it was hardly likely that she would have given out that she had already been transferred another evacuee property. (2) The statement of Begum Wazir Ahmad made before the Deputy Settlement Commissioner in which she categorically stated that she applied for the transfer in the name of the Industrial Home and not in her own name (vide pages 5 and 6 of the supplementary paper book and page 63 of the original record). (3) The order of allotment appearing at page 73 of the paper‑book itself shows that the disputed portion was allotted to "Begum Wazir Ahmad Incharge Industrial School Lahore". (4) The affidavit of Begum Wazir Ahmad filed before the Settlement Commissioner (vide pages 95 and 96 of the file of the Settlement Commissioner) wherein she categorically asserted that she had applied for the transfer of the house in the name of the Industrial Home and that she or her successors had no concern whatsoever with the ownership of the building which would remain in the name of the Managing Committee of the school (also vide order of the Settlement Commissioner dated the 17th of July 1964). Besides these materials it appears that even before the Deputy Settlement Commissioner an application signed by the Members of the Working Committee of the Begum Wazir Ahmad Industrial Home was made that the transfer was sought in the name of the Home. It also appears from the order of the Deputy Settlement Commissioner himself that the property was burnt. Begum Wazir Ahmad claimed that the school had spent a considerable amount on the building. If upon these materials the Settlement Commissioner came to the finding that it was really on behalf of the appellant that the application for transfer had been made no fault could be found with the finding. As a matter of fact these materials were very relevant for determination of the question as who had applied for the transfer of the property in dispute, and they were never considered earlier either by the Deputy Settlement Commissioner or the Additional Settlement Commissioner. They were never considered by the learned Judges of the High Court either. The finding of the Settlement Commissioner can by no stretch of imagination be said to be based on no evidence or vitiated by any disregard of the accepted principles governing the appreciation of evidence. The High Court could not interfere with the findings of the Settlement Commissioner even if upon the same facts a different view could be taken. There was neither any jurisdictional defect nor any contravention of any fundamental principle in arriving at the impugned findings. This view receives support from the decision of this Court in the case of Muhammad Hussain Munir v. Sikandar P L D 1974 S C 139) in which it was observed, inter alia : "It is well‑settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law" Again in the case of Rahim Shah v. Chief Election Commissioner (P L D 1973 S C 24) it has been observed as follows :‑ "It may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent to this constitutional jurisdiction cannot be enlarged to an appeal on facts or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is therefore limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its, hand and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, bad faith, misdirection or' failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted." The case reported in P L D 19?5 S C 58 does not say anything to the contrary. The Settlement Commissioner was a tribunal of exclusive jurisdic tion and in the present case occupied the highest position in the hierarchy of Settlement Authorities. He considered all the relevant evidence and the probabilities of the case in arriving at his findings. On the contrary neither the Deputy Settlement Commissioner nor the Additional Settlement Com missioner nor even the learned Judges of the High Court considered them. The learned Judges of the High Coin did not advert to or meet the reasons given by the Settlement Commissioner. The judgment of the High Court was brief, and contented itself with considering only the C. H. Form in question and that also superficially and not in conjunction with the allotment order in favour of "Begum Wazir Ahmad Incharge of Industrial School, Lahore", and the statements made by Begum Wazir Ahmad herself. I am unable to find any substance in the contention feebly advanced on behalf of respondent No. 1 that the Settlement Commissioner had no jurisdiction to revise the order of the Additional Settlement Commissioner inasmuch as the latter was a delegatee of the Chief Settlement Commissioner under the said Press Note dated the 3rd of May 1960, and therefore no revision from his order was available. In the said Press Note issued under Paragraph 20 of Settlement Scheme No. 1 the Chief Settlement Commissioner decided as required under) the said Paragraph 20, that houses, shops and other properties; which had been converted to some other use after the 14th of August 1947, may be disposed of in the manner mentioned in the Press Note. Under Paragraph 2 of the Press Note the Additional Settlement Commissioner was alone authorised to pass orders with regard to the disposal of a converted property. This did not make the Additional Settlement Commissioner a delegatee of the Chief Settlement Commissioner so as to' prevent the Settlement Commissioner from entertaining revision from the, order of the Additional Settlement Commissioner as provided under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This view receives support from the case of Fateh Muhammad v. Maula Bakhsh (P L D 1963 S C 311). At pages 317 and 318 of the report appear the following observations : Converted properties , however, fall specifically within paragraph 20 of Settlement Scheme No. 1 which does not stand on the same footing as a provision of the Act itself. This was a Scheme prepared by the Chief Settlement Commissioner himself and which he could vary from time to time, with the concurrence of the Central Government. Under this paragraph, the Chief Settlement Commissioner had laid down broad principles for dealing with converted properties. The powers exercisable by the subordinate officers in pursuance of those principles could not be said to be delegated powers. The Chief Settle ment Commissioner could obviously not be expected to personally pass orders in each individual case of converted property. The number of such properties within his jurisdiction would be very large. The only practical course open to him therefore was to issue general ,directions to be followed by his subordinates and this was actually what he did. The orders passed by the subordinate officers in ,pursuance of those guiding principles laid down by the Chief Settle ment Commissioner, would attract all the incidents of appeal, revision and review under the Act. It is clear therefore that the Deputy Settlement .Commissioner in this case was not really exercising powers as a delegatee of the Chief Settlement Commissioner but if he purported to depart from the general instructions issued under paragraph 2 of Settlement Scheme No. 1, he exceeded his jurisdiction. He did not .expressly invoke his powers as a delegatee of the Chief Settlement Commissioner under clauses (4) and (12) of section 2 of the Act, while passing the order that be did and there is nothing else in the record to indicate that he was exercising such delegated powers. . . The order passed by‑the Additional Settlement Commissioner in respect of the converted property involved in this appeal, was the first competent order in so far as it dealt with .converted property and the variations introduced into it by higher officers were also justifiable under powers of revision conferred on them under section 20 of the Act. The High Court consequently very properly refused the writ prayed for in this case and no case been made out for interference by this Court. The appeal is dismissed". Section 31 of the Act does not appear to apply to such a case. Besides no objection as to jurisdiction was taken either before the Settlement Commissioner or the High Court and it cannot be raised here for the first time. Vide 1970 S C M R 375 ; 1971 S C M R 16 ; 1974 S C M R 90 and 1974 S C M R 528 at p.

529. I now come to the applicability of the Press Note dated the 3rd of May 1960. Vide page 139 of the Old Manual. Under Paragraph 2 it is exclusively the jurisdiction of the Additional Settlement Commissioner to deal with a converted property. This position is accepted by respondent No. 1 in para (c) of grounds in the concise statement of the respondent. It is, thus, evident that the Deputy Settlement Commissioner once he found that the disputed property had been once used as a school, had no jurisdiction to transfer the property. His duty was to submit the case to the Additional Settlement Commissioner. The other relevant provisions of the Press Note are as follows : "

3. As a general principle, the property will be disposed of according to the use to which it was being put on 20th December 1958, unless the Additional Settlement Commissioner is satisfied that the property should be disposed of in the public interest according to its status at the time it became evacuee property. The following broad principles have, however, been laid down by the Chief Settlement Commissioner for the guidance of the Additional Settlement Commissioners : (i) A house, a shop or a small industrial concern converted into a school, college or a hostel, may be transferred to the person or authority running the school, college or the hostel, if the institution has been duly recognized by the Educational Authorities concerned. A vacant building site in possession of the institution if required as a playground for the institution, may also be transferred along with it. The price to be charged for the building and the vacant building site will be the prevailing market value. . (x) If a property is not covered by any of the above instructions, the question of its disposal may be referred to the Chief Settlement Com missioner.

4. Persons to whom any fresh rights have accrued as a result of this announcement and who are in possession of properties which have not yet been disposed of may submit applications on plain paper to the Deputy Settlement Commissioner of the area concerned, if not already done. Such applications should be accompanied by the prescribed form, of any, relating to the transfer of the property accord ing to its use on 20th December 1958 and should reach the Deputy Settlement Commissioner concerned by 21st May 1960 at the latest. Cases already decided, will not be reopened, if the properties have been disposed of in accordance with the orders for the time being in force." From a plain reading of the first part of paragraph 3 of the Press Note it seems to me clear that ordinarily and in the normal course the Additional Settlement Commissioner is required to transfer the property according to the use it was being put to on the 20th of December 1958. This course can be departed from only in a case where the Additional Settlement Commissioner is satisfied that the property should be disposed of in the public interest according to its status at the time it became evacuee property. This is the general rule that governs the transfer of a converted property. This view is fully supported by the following observations of this Court in the case of Fateh Muhammad v. Maula Bakhsh (PLD 1963 SC 317): "In view of the general instructions referred to above, it was not within the power of the Deputy Settlement Commissioner to depart from the normal rule that such properties had to be dealt with on the basis of their user on the 20th December 1958. If he wanted to depart from this position he could have only made a reference to the Additional Settlement Commissioner and he could: not have, on his own, declared the property to be one residential unit, in spite of the fact that seven rooms therein were being used as shops." Clause (i) of paragraph 3 is applicable to a property converted into a school, college or a hostel. Now the appellant, i.e., Begum Wazir Ahmad Industrial Home consisted of two parts, viz., Home for the destitute and poor widows wherein they were taught to earn their living and lead an honourable life, in society, and a free primary school. Having regard to the facts stated earlier there is no doubt about the fact that one or both existed in the disputed property on the target date. The allotment order Annexure R/1 at page 73 of the paper‑book shows that in the year 1956 there was a school in the disputed property. The Settlement Authorities found that there was a school/Home in the property. In either case, therefore, the disputed portion was a converted property on the target date and could only have been disposed of by the Additional Settlement Commissioner in the manner mentioned in paragraph 3, vii., transferred to the appellant Home. If there was a school also then the principle laid down in clause (i) might apply and the requisite recognition might be insisted upon but this too was within the discretion of the Additional Settlement Com missioner for these are only broad principles for the guidance of that officer. The underlying idea evidently is that the school must be a bona fide institution properly equipped to cater to the educational needs of its students. The facts that it was registered under the Societies Registration Act XXC and it received aid both from the Central and Provincial Govern ments seem to me to fully satisfy the test. The respondent has denied the existence of the school on the target date but not that of the Home. Looking to the orders of the Deputy Settlement Commissioner and the Settlement Commissioner there is no doubt that even the school existed in the disputed portion although its recognition by the Education Authorities came only on the 24th of September 1960 and it was recognized with effect from the 1st of April 1962. Permanent recognition was given to the school with effect from the 1st of April 1965. Even at the time the Additional Settlement Commissioner and the Settlement Commissioner dealt with the case both the Home and the school existed and the latter was a duly recognized one. Therefore, the first part of paragraph 3 as well as clause (i) thereof apply to the appellant. Under paragraph 4 of the Press Note the appellant could apply to the Deputy Settlement Commissioner for transfer by the 21st of May 1960. The application was filed on the 15th of July 1960, and it was late by about 53 days. The delay was, however, not fatal for it was condoned by the Additional Settlement Commissioner. On the date the application was filed the property had not been disposed of. The property was transferred to respondent Niaz Begum on the 7th of September 1960, by the Deputy Settlement Commissioner. The delay in the making of the application for transfer was, therefore, rightly condoned by the Additional Settlement Commissioner. On behalf of the appellant Home it has also been contended that inasmuch as the house had been divided by the Settlement Commissioner into three parts, and each part is given to a person who has been in occupation of it, and applied for its transfer, the order was just and equitable one and the ends of justice required that it should not have been interfered with by the High Court. There is substance in this contention also. In the same context it has been argued that as respondent Niaz Begum had already been transferred the portion in her occupation, it must be regarded as an independent house and she was, therefore, neither entitled to another ' house which had been transferred by the Settlement Commissioner to the appellant nor had she any locus standi to challenge the transfer in favour of the appellant. The High Court did not consider the question of division of the house by the Settlement Commissioner and, therefore, the division as trade by the Settlement Commissioner stood. I also find substance in the contention advanced on behalf of the appellant that inasmuch as Begum Wazir Ahmad Industrial Home (the g appellant herein), to whom the property in dispute had indeed been transferred by the Settlement Commissioner, was not made a party before the High Court any order passed by the High Court against Begum Wazir Ahmad in her individual capacity to whom the disputed property had never been transferred will not affect that part of the order of the Settlement Commissioner wherein the disputed property had been transferred to the appellant Begum Wazir Ahmad Industrial Home. As regards respondent Razia Begum, suffice it to say that the deed of association was a conditional one and that it contained a condition that if the transferee, namely, Mst. Niaz Begum lost her case in appeal or revision, the deed of association was to stand cancelled. This condition operated when the Settlement Commissioner finally rejected the revision of respondent Niaz Begum and the transfer was refused to her. As a matter of fact respondent Niaz Begum thereafter applied for cancellation of the Provisional Transfer Order issued to Mst. Razia Begum. The Provisional Transfer Order was, accordingly, recalled for cancellation. It does not appear what happened thereafter. There are also some suspicious circumstances about the association. The deed of association itself does not appear on the record of the case, and only a photostat copy of the deed seems to have been filed. There is also nothing to show that previous approval of the relevant authorities had been obtained for the association. It is, therefore, doubtful how far the association was legal. In any event in the facts and circumstances of the case she stood or fell with respondent Niaz Begum. It is true that she was not made a party either in the appeal before the Additional Settlement Commissioner or in revision before the Settlement Commissioner. This omission, however, did not relieve respondent Razia Begum herself from the duty to be diligent in the matter of protecting her rights. It is very unlikely that she was not aware of those proceedings. The only inference that can be drawn from her inactivity is that she was fully aware of the aforesaid condition in the deed of association and knew fully well that she stood or fell with respondent Niaz Begum. In auy event she is now a party before us and the Court heard her counsel on the merit of the case. She is not an individual transferee of the disputed portion in her own rights and as I have already found against Mst. Niaz Begum, Mst. Razia Begum, too, must share her fate. I would, accordingly, allow the appeal with costs against respondent Niaz Begum only and without costs as against the rest and set aside the order of the impugned High Court and restore that of the Settlement Commissioner. Mst. Razia Begum is, of course, at liberty to take any steps open to her for re‑imbursement of any money that she might have paid to Mst. Niaz Begum on account of the aforesaid deed of association. s. A. H, Appeal allowed.