P L D 2004 Supreme Court 622 (PLP)

On post remand proceedings, the Settlement Commissioner (Urban) Punjab Lahore passed order on 19th April, 1984. Operative para. reads as under thus:‑‑ "

18. I, therefore, order that P.T.O. in the name of Latif Hussain Shah should be cancelled. The informant shall be transferred the house as a ;Mukhbar. He has a much better claim than the respondents as discussed already. I cannot disentitle him now in view of the Supreme Court's order that the respective claims of these parties are to be looked into. If the law had been repealed from 13‑1‑1992, then the case would not have been remanded for fresh decision on merits. The informant would have been ousted by the Supreme Court. This was not done and the case was declared as pending in my Court between these two parties. Ch. Ali Ahmad, Settlement Commission's order dated 18‑9‑1962 and Deputy Settlement Commissioner's order of transfer to the informant passed on 9‑11‑1962 are reiterated in this way."

3. Against the above order, legal heirs of Latif Hussain Shah (late) preferred Writ Petition being No.222‑R of 1984 but their claim was rejected for the following reasons:‑‑ "Although Mr. A.R. Shaukat, learned counsel for the petitioners has contended that the predecessor of the petitioners was in possession of the property even before 20‑12‑1958 and that the finding of fact recorded by the Chief Settlement Commissioner in the impugned order is contrary to law and is not sustainable. I am not inclined to go into this controversy as to me this aspect is of no consequence. In any case, I am inclined to agree with Ch. Muhammad Farooq, Advocate. This finding of fact in the absence of any misreading is not liable to be interfered with." Simultaneously the request of appellant (Rafiullah‑complainant) for transfer of the house as 'Mukhbar' was rejected with the observation that the property shall be treated to be disposed of as available property. As such instant appeal by leave of the Court has been filed by him.

4. Learned counsel for the appellant argued that his application of 'Mukhbari' was inconsonance to the press note dated 29th September, 1960 issued by the Chief Settlement Commissioner followed by the notification S.R.O. No.824‑K/6; dated 1st September 1961, Gazette of Pakistan, Extraordinary, 2nd September, 1961 (hereinafter referred as 'the SRO') and the application was allowed by Ch., Ali Ahmed, Settlement and Rehabilitation Commissioner on 18th September 1962 and Chief Settlement Commissioner on 13th October, 1962. Therefore, according to him notwithstanding the promulgation of Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance, 1962 the appellant had acquired a right to retain the transfer of disputed property. Besides it the case of the appellant is fully protected under the Displaced Persons (Compensation and Rehabilitation) (Validation of Transfers) Ordinance, 1963, he also added that before the Lahore High Court the transfer order in favour of appellant as per the order of the Settlement Commissioner dated 19th April, 1984 was not under question, thus it had no jurisdiction to set aside the same.

5. On the other hand learned counsel for the private respondents contended that 'Mukhbari' application filed by the appellant in pursuance of press note issued by Chief Settlement Commissioner on 29th September, 1960 was not maintainable as the same was issued without prior approval of the Central Government. Likewise when the SRO was issued, no fresh application was submitted by the appellant and even his earlier application cannot be treated under the SRO because said application has become infructuous, in view of the, Ordinance II of 1962 promulgated on 13th January 1962. Thus according to him the order of Chief Settlement Commissioner dated 13th October, 1962 cannot be considered to have been passed with lawful authority and jurisdiction, and for such reasons the Settlement Commissioner after the post remand proceedings vide judgment of .this Court dated 3rd May, 1981 'had reiterated both the orders illegally vide order dated 19th April, 1984 and under these circumstances the High Court was right to declare the property in dispute available for further transfer.

6. We have heard parties' counsel and have also gone through the impugned judgment carefully. At the very outset we feel it appropriate to point out that this Court in the case of Ahmed Khan v. Chief Settlement and Rehabilitation Commissioner and others (1975 SCMR 67) by making reference to a judgment of learned High Court in the case of Sh. Muhammad Amin v. Chief Settlement Commissioner and others (PLD 1966 Lah. 473) has held that the press note dated 29th September 1960 had no legal sanction behind it. For convenience following para. from the case of Sh. Muhammad Amin (ibid) is reproduced herein below thus:‑‑ ..Now, in the present case, the proceedings were, no doubt, initiated by the Director of Enforcement, in November 1960, but no effective action was taken by any authority until the 20th of February 1962, when Sh. Muhammad Rafiq passed an order summoning the parties and the records. At that time, the Central Government's order dated the 1st of September 1961 had already been promulgated, and as the earlier press‑note appears to me to be without any legal sanction, I am of the view that the proceedings in fact taken against the petitioner by Sh. Muhammad Rafiq must be deemed to be proceedings under the notification of the 1st of September 1961. On this view of the matter it is not necessary to examine whether the conditions laid down in the Press Note of the 29th of September 1960, are fulfilled or not in this case. " Following the above observation it can conveniently be held that any proceedings initiated in favour of the appellant on his 'Mukhbari' application dated 30th October, 1960 have no binding effect so far as the claim of the appellant to transfer the property on his name is concerned. Assuming for sake of arguments that appellant's case can be considered under the SRO, but it would also not improve his case because before passing of order by the Settlement Commissioner, Lahore dated 18th September, 1962 and the Chief Settlement Commissioner dated 13th October, 1962, the SRO stood cancelled in view of substitution of section 10 of the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance, 1962, promulgated from 13th January 1962, before passing of orders by the Settlement and Chief Settlement Commissioner in favour of appellant, referred to herein before.

7. Learned counsel for the appellant vehemently contended that as at the time of promulgation of Ordinance II of 1962, the case of appellant was pending before the Settlement Authority, therefore, in view of the judgment in the case of Maj. J.H. Naqvi v. Director Enforcement West Pakistan (PLD 1996 SC 512), it shall be treated pending for disposal under the law prevailing prior to promulgation of Ordinance II of 1962 on the strength of the, provisions of section 6 of the General Clauses Act. His such argument has been opposed by the learned counsel for the respondents in view of the case of Muhammad Akram v. Mst. Adam Bibi and seven others (1970 SCMR 563) wherein Justice Hamood‑ur‑Rehman (as then he was) while attending to an identical question relating to saving of proceedings instituted by the Mukhbar/informer in view of the provisions of section 6 of General Clauses Act qua the implication of the Ordinance II of 1962 observed as under:‑‑ "We are, however, unable to agree that these provisions of the General Clauses Act are at all attracted in the present case, for the jurisdiction that was exercised by the, Settlement Commissioner ‑ in canceling the transfer in favour of the respondents and transferring the property to the petitioner as an informant was conferred under an order of the Central Government bearing No.SRO 824(K)/61, dated the 1st September, 1961, which order has not been repealed. What has happened in the present case is that section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, has been amended by Ordinance No.II of 1962 by deleting therefrom clause (b), which gave power to the Chief Settlement Commissioner to transfer or dispose of a property out of the compensation pool "in such other manner as may be approved by the Central Government." The order of 1st September 1961, was the other manner of disposal approved by the Central Government. This clause (b) having been deleted there .was no power left in the Central Government to approve of any other method of disposal of evacuee property and, therefore, this Court held in the above mentioned case that after the introduction of the change the Settlement Authorities were also left with no power to make such a transfer to an informer. " In this case leave to appeal was declined to the petitioner.

8. He also relied upon the case of Allah Ditta v. Haji Jan Muhammad and 3 others (PLD 1974 SC 143). It may be noted that in this case in the leave granting order one of the questions for consideration relates to the applicability of the ratio decidendi in the case of Maj. J.H. Naqvi or the ratio decidendi in the case of Khuda Baksh v. Khushi Muhammad and 3 others (PLD 1976 SC 208) and Allah Ditta (ibid). In Allah Ditta's case Mr. Justice Muhammad Yaqoob Ali (as then he was) after having examined the judgment in the cases of Ch. Altaf Hussain v. Chief Settlement Commissioner (PLD 1965 SC 68), Mian Rafi‑ud‑Din v. Chief Settlement Commissioner (PLD 1971 SC 252), Abida Khatoon v. Mian Ghulam Shabbir (PLD 1964 SC 793) observed as under: "Power to transfer evacuee properties to informers who were in possession was thus taken away with effect from the 13th January, 1962 when the Ordinance came into force. The provisions of section 6 of the General Clauses Act also did not apply as no right had come to be vested in the informers. All pending cases under SRO No.824(K)/1961, therefore, lapsed with the repeal of clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.". It is important to point out that one of the members of the Bench in the above case i.e. Justice S. Anwar‑ul‑Haq (as then he was) in an earlier judgment in the case of Sh. Muhammad Amin (ibid) has held that even after the re‑enactment of the old section 10(b) of the Act and in a radical amended, proceedings against the petitioner could continue by virtue of clause (c) or d) of section 6 of the General Clauses Act but in this judgment he revised his this view and observed that if some property is in unauthorized possession and has been the subject matter of irregular transfer the informer does not acquire a vested right in that property. In Khuda Bakhsh's case (ibid) again same observations were reiterated. He has also referred to the judgment reported as Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst. Akhtar Sultan (PLD 1976 SC 410) wherein once again the ratio decidendi in the case of Allah Ditta (ibid) was followed. It may not be out of place to mention here that mere filing of "Mukhbari" application by any person no right would come to rest in his favour, therefore, the proceedings initiated on such application would not be considered alive after the promulgation of Ordinance II of 1962. In this behalf reference to another authority in the case of Muhammad Haneef v. Chief Settlement Commissioner (1969 SCMR 116) can also be made. Relevant para. therefrom reads as under thus:‑‑ "The learned counsel is unable to show that by laying information with the Directorate of Enforcement regarding irregular transfer of the shop to its occupants a vested right of transfer of the shop was created in his favour. The words used in SRO 824 are `The Chief Settlement Commissioner may transfer' and as pointed out in Abida Khatoon's case he, for a variety of reasons, may decline to give to an informer the property which on the information given by him is proved to have been irregularly transferred. We see no ground to depart from the view adopted earlier by the Court and refuse leave to appeal. The petition is dismissed. " By examining the arguments of both the parties and having gone through the provisions of Ordinance II of 1962 which has radically amended section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and following the dictum laid down in the above noted judgments, we are persuaded to hold that Chief Settlement Commissioner was allowed to transfer the property out of the compensation pool either by means of auction or otherwise in accordance with the provision of schedule, as a result whereof 'Mukhbar' informer has been kept out of picture for all intents and purposes and if any proceedings are pending on the basis of such application before the said authority, those shall stand abated without any further action. In the instant case notwithstanding the fact that at one stage the Settlement Commissioner and Chief Settlement Commissioner vide order dated 18th November 1962 and 13th October 1962 respectively, allotted the disputed property in favour of the appellant but without looking into the relevant provision of law declared by the superior Courts, therefore, case of appellant would be governed by the judgment in the case of Allah Ditta and Khuda Bakhsh (ibid) and by the case of Maj. J.H. Naqvi supra.

9. It is also to be noted that in the case of Maj. J.H. Naqvi (ibid) two important judgments i.e. Abida Khatoon (ibid) and Muhammad Siddique (ibid) were not cited. Otherwise perhaps the mandate of this judgment would have been different. Besides it, the disputed facts of Maj. J.H. Naqvi's case are entirely different from the case in hand because in the said judgment there was dispute with regard to proceedings of cases preferred by two informers, thus for this reason as well as of Maj. J.H. Naqvi is not applicable on the facts of this case.

10. It is also important to ascertain as to whether the learned High Court in Suo Motu Jurisdiction proceeded to examine the case of appellant in the writ petition which was filed on behalf of Syed Latif Hussain Shah? In this behalf reference may be made to the order of this Court dated 3rd May 1981 (relevant para has already reproduced herein above) according to which both the parties i.e. appellant and Syed Latif Hussain Shah were allowed to support their respective pleas in accordance with law and the concerned authorities were declared free to decide the case according to their independent view etc. In addition to it Syed Latif Hussain Shah in the memorandum of writ petition categorically challenged the transfer of the disputed property in favour of the appellant with reference to the earlier order dated 18th September, 1962 passed by Ch. Ali Ahmed Settlement and Rehabilitation Commissioner, therefore, contention so raised in this behalf by the learned counsel has no force.

11. Then it was also contended by the appellant counsel that after the issuance of Ordinance II of 1962 another Ordinance i.e. Displaced Persons (Compensation and Rehabilitation) (Validation of Transfers) Ordinance 1963 was promulgated which has validated the transfer of property made by the Chief Settlement Commissioner with the approval of the Central Government from the compensation pool constituted under the Displaced Persons (Compensation and Rehabilitation) Act 1958 (XXVIII of 1958) to any persons or class of persons by any general or special order, on or after the 8th August 1959, but before the commencement of this Ordinance in the purported exercise of the powers under the said Act, shall, notwithstanding anything contained in that Act or any rule or order made thereunder, be deemed to have been validly transferred as if the Chief Settlement Commissioner had, at all material times, powers under the said Act to so transfer such property; and the validity of any such transfer shall not be questioned in any manner whatsoever.

12. It is submitted by learned counsel in view of the above Ordinance to transfer for the property made in favour of the appellant by the Settlement Commissioner on 18th September, 1962 and 13th October, 1962 revived and again on 19th April, 1984 by the Settlement Commissioner, therefore, the High Court has no jurisdiction to cancel the same. This aspect of the case came under consideration before this Court in the case of Muhammad Siddique and others v. Chief Settlement and Rehabilitation Commissioner Lahore and others (PLD 1965 SC 123) ibid wherein it has been held as under:‑‑ "This is a general enactment intended to cover transfers made by the Chief Settlement Commissioner with the approval of the Central Government, about whose validity doubts may have arisen. It does not expressly refer to transfers in favour of "informants" made under the authority of the order. We are not prepared to hold that an illegal order in favour of an informant has also been validated by this Ordinance."

13. Thus in view of observation and discussion made herein above we are not persuaded to hold that any legal order in favour of the appellant being ' Mukhbar' /informer has been validated by this Ordinance.

14. Lastly learned counsel contended that the SRO had two stages, one relating to investigation by the Director of Enforcement and second the judicial powers and as in the instant matter the case has entered into the second phase pertaining to the judicial decision on his application, therefore, the proceedings shall not be abated despite of the promulgation of Ordinance II of 1962. Suffice to observe that when the informer had no vested right to claim transfer of the property in view of the judgment noted hereinabove, his case cannot be kept alive merely for the reason that after inquiry it has entered into a phase where a judicial order was required to be passed, because for the purpose of survival of judicial proceedings as well as existence of locus standi and a right to claim relief are necessary elements for a claimant which were essentially lacking in instant case, therefore, this argument of the learned counsel had not advanced the case of appellant.

15. No other point was argued by the parties counsel. Thus for the foregoing reasons appeal is dismissed leaving the parties to bear their own costs. S.A.K./R-6/S Appeal dismissed.