1988 PLP 1668 (SCMR)

JAVID IQBAL, J.‑‑The property in dispute in this appeal is S‑82‑R‑18 Church Road, Lahore. The relevant facts are that portion 'A' of the disputed property on the basis of assessment was allotted to the present appellant on 22 February, 1962. P.T.O. was issued in his favour. At that stage he had a dispute with another occupant namely Gill which went up to the High Court and writ petition pertaining to the same was decided in his favour on 27 February, 1964. As he was a claimant displaced person his compensation book amounting to Rs.1,08,000/‑ was lying with the Department. The appellant is stated to have put in an application dated 22 January, 1969 praying that the transfer price of the disputed property i.e. Rs.8,280/‑ be adjusted from his compensation book which was still in the stage of preparation with the Settlement Department, but there was no response to his application. He visited the office of the Settlement Authority on 13 April, 1971 and for the same purpose filed another application but was informed that the said property had been resumed due to non payment of the transfer price. The order in this connection was passed by the Deputy Settlement Commissioner on 19 March, 1971. It is at page 1 of the paper book. It is strange that on 19 March, 1971 the Ward Incharge reported to the Deputy Settlement Commissioner that a notice was issued to the appellant for payment of Rs.8, 280 but no payment had been made during the prescribed period and that therefore the property be resumed. On the same day i.e. on 19 March, 1971 an order was passed by the Deputy Settlement Commissioner in the following words: "Resumed as proposed under Settlement Scheme No.VIII." The case of the appellant is that he moved an application on 15 April, 1971 to the effect that the resumption order be withdrawn and the disputed property be restored to the appellant under para. 22(2) of the Schedule and that the entire transfer price be adjusted out of his compensation book which the department itself was to issue in his favour. It was also prayed that the disposal of the property in question by auction or otherwise be stayed till the decision of .his application. On this application the Deputy Settlement Commissioner passed the following order on 16 April, 1971:‑ Property No.S‑82‑R‑18, Church Road, Lahore. A portion of above‑noted property was transferred to Mr. Saeed Ahmad which was resumed vide D.S.C's. order, dated 19 March, 1971 for non‑payment of the transfer price of Rs.8,

280. Saeed Ahmad filed an application on 15 April, 1971, he stated in the application that he is a claimant and he filed Form 'A' vide No.LHR‑V/4666 in Centre V but no compensation book has been issued to him. He also requested that when compensation book has been issued to him transfer price be adjusted from the C.B. He also filed P.T.D. application which is diarised in this office vide No.8014, dated 22 January, 1969. Submitted for orders please. Sd/- 16‑4‑1971. D.S.C. II. Ask D.S.C. Centre No.V on the subject. Till further reply the property be not included in auction list. Sd/ 16‑4‑1971. It is submitted on behalf of the appellant that his compensation book was eventually prepared by the Settlement Department on 21 July, 1973. Consequently he again moved an application for the transfer of the said property on 28 August, 1973 but he was informed by the Settlement Commissioner, Urban, Punjab on 6 October, 1973 that since the property in question had been disposed of and was no longer in the evacuee pool, the case of the appellant could not be re‑opened and that he should have filed an appeal against the resumption order. Thereupon the appellant challenged the aforesaid order by way of a revision on 10 October, 1973 which was accepted by Khan Asmatullah Khan, Settlement and Rehabilitation Commissioner, Lahore vide his order dated 8 April, 1974. After perusal of the entire record of the case the Settlement Commissioner arrived at the following conclusion: "All the facts will clearly indicate that the petitioner (appellant) did not remain silent over the resumption order and promptly took up the matter with the higher authorities. There is nothing on the file as to what actually happened with the prayer of the petitioner (appellant). No notice appears to have been issued or personally served on him in this regard. In the circumstances, the impugned order passed by the DSC dated 11 May, 1973 was an ex parte order which is nullity in the eye of law. It may be recalled that the petitioner (appellant) is in occupation of this building since long. In case no balance was available from his compensation book it was necessary for the DSC to call upon him to deposit the transfer price within the prescribed period in compliance with the direction on the subject. I find no step in this regard was taken by the DSC. In the circumstances the DSC was not justified in transferring this portion of the property to Ch. Muhammad Siddique, Advocate (respondent). In view of what has been said above I accept the revision petition, set aside the order of the DSC. The file be sent back to the DSC of the area concerned. He will hold the inquiry afresh. In case the petitioner (appellant) fails to make adjustment or deposit the transfer price, the DSC's order transferring the property to the respondent will hold good. With this direction, the revision petition is otherwise accepted." Aggrieved by the aforesaid order Ch. Muhammad Siddiq respondent filed writ petition which was accepted vide the impugned judgment of learned Single Judge of the Lahore High Court, Lahore dated 19 February, 1980. The case of the aforesaid respondent was that he applied for the transfer of the disputed property on 24 March, 1971 under Settlement Scheme No. VIII but his form remained pending until 2 May, 1973. Thereupon, he moved another application before the Deputy Settlement Commissioner seeking disposal of his form. The Deputy Settlement Commissioner after holding inquiry in the matter transferred the disputed property in favour of the respondent on 11 May, 1973. Shortly thereafter since the respondent had cleared the dues, he was eventually issued P.T.D. on 5 June, 1973. The case of the respondent before the learned Single Judge of the Lahore High Court, Lahore further was that the present appellant did not at any stage assail the order of resumption of the disputed property dated 19 March, 1971 but had filed a revision petition on 10 October, 1973 before the Settlement Commissioner ire. after the property in question had been transferred to the respondent, and he even had been issued a P . T . D. It was also argued before the learned Single Judge that the appellant was served with notice of demand but he failed to pay the transfer price within the ‑specified period and therefore the said property was resumed. However, he did not challenge the resumption order under para.4(1) of the Settlement Scheme No. VIII within a period of 15 days. Thereafter, the said property was transferred in the name of the respondent. It was further contended that even the revision petition filed by the appellant on 10 October, 1973 was time‑barred and was not accompanied by an application for the condonation of delay under section 5 of the Limitation Act and therefore the learned Settlement Commissioner could not accept his revision petition without condoning the delay. The respondent had further claimed that he was claimant in possession of the disputed property since 1951 and that since the present appellant had not challenged the resumption order in appeal he was estopped from assailing the order of transfer of the said property made in favour of the respondent by way of time‑barred revision petition. Hence the learned Single Judge after hearing the parties had correctly arrived at the following conclusion: "After hearing counsel for the parties and perusal of the documents on the file with reference to the submissions made by them at the Bar I am of the view that the order passed by the Settlement Commissioner cancelling the order of transfer made in favour of the petitioner (respondent) was illegal. Respondent No.2 (appellant herein) neither applied within fifteen days nor made payment in lump sum of the property within one month from the date of resumption as required under para.4(1) of Settlement Scheme No. VII. He also did not assail the order of resumption in appeal or revision, despite knowledge, but filed belated revision petition against the order of transfer to the petitioner (respondent). However, the revision petition was not accompanied by an application for condonation of delay as envisaged under section 5 of the Limitation Act. The order of the Settlement Commissioner shows that he was not aware of the fact that the revision petition .was out of time and did not apply his conscious mind to the point of limitation before dealing with the case on merits. The petitioner (respondent) on the contrary applied for transfer within fifteen days from the order of resumption. He was claimant in possession of the property since 1952. He applied for its trarisfer when it was available property and the same was transferred in his favour. He cleared all the dues and obtained P.T:D. After the issuance of P. T. D. the property had gone out of compensation pool. Respondent No.2 (appellant) did not allege fraud or misrepresentation against the petitioner (respondent) in obtaining the P.T.D. pertaining to the property in dispute. The upshot of the above discussion is that the order dated 8 April, 1974 passed by the Settlement Commissioner is declared to be of no legal consequence and quashed." It is submitted by the respondent that although he was in possession of the disputed property since 1951 and he was a claimant, he moved application for transfer of the same only in 1971 when it was available for transfer. He also pointed out that he was in possession of two rooms and that the roof of the front room had fallen down. According to him he had been using the premises as his office since 1951 but ever since roof had fallen down, he had shifted his office elsewhere. The appellant who has four members of his family is residing in the Barsati above and according to him they all live in one room and he has grown up daughters who had been brought up as children during past years in the said single room. The appellant has stated before us that his compensation book was of the amount of Rs.1,08,000 and he got it en cashed on 24 April, 1974 and received Rs.80,000 from the Department. He further stated that he had already paid the price of the property in dispute i.e. Rs.8,280 within the time specified in the order dated 8 April, 1974 of the Settlement and Rehabilitation Commissioner, Lahore whereby his revision was accepted. But this is being denied by the respondent. On this we asked the appellant to produce a receipt that he had paid the said amount. The receipt which he has placed on the record in this connection is dated 23 April, 1974 and it is of payment of Rs.6,

480. The original notice issued to the appellant dated 19 March, 1971 was for making payment of Rs.8,280 and it was of non‑payment that the said property was resumed. However it appears that the appellant did not even comply with the order dated 8 April, 1974 of the Settlement and Rehabilitation Commissioner, Lahore. Any way we have carefully considered the arguments of learned counsel for both the parties and also perused the record. The respondent is in possession of the two rooms of the property since 1951 whereas the appellant is in possession of a Barsati on the top of it since 1962. The respondent had paid all the charges and was even issued P.T.D. On the other hand the appellant who has been living in the Barsati on the top had not paid the amount which he was required to pay although he got his compensation book en-cashed on 24 April, 1974 and received Rs.80,000 from the department. The judgment of the High Court accepting the writ petition of the respondent therefore does not require interference. In that view of the matter his appeal cannot succeed. However, the respondent is prepared to make concession in his favour to the effect that if the respondent is allowed to retain ownership of the portion of the property in his possession, he will have no objection if the appellant remains owner of the Barsati which is a portion the disputed property under his possession. In the light of this concession made by the respondent in favour of the appellant we are of the considered opinion that it would meet the ends of justice if the portions of the disputed property remain transferred to the appellant as well as the respondent which are in the possession of each of them namely two rooms on the ground floor with the respondent and the Barsati on the top with the appellant. The appeal is disposed of with these observations but there shall be no order as to costs. M.I./S‑166/S Order accordingly.