P L D 1973 Lahore 297 (PLP)

The dispute in this writ petition relates to a residential portion in property No. BI‑3‑S‑16, Block 'B', Kamoke, District Gujranwala. Muhammad Tufail respondent was in possession of one room, while Abdur Rashid petitioner bad two rooms in his possession and Muhammad Rafiq petitioner only one. Muhammad Tufail respondent and Abdul Rashid petitioner are claimants, while Muhammad Rafique petitioner filed his NCH form. The peti tioners submitted their belated claim forms on 14‑7‑1960 before the Additional Settlement Commissioner who entertained the same on the condition that if otherwise they were in order and the petitioners were in possession of the property which had not been transferred or included in B' List. According to the version of the contesting respondent, these claim forms were received by the Deputy Settlement Commissioner on 11‑8‑1960 when the property had already been transferred to him on 30‑7‑1960. On the other hand, the assertion of the petitioners is that their claim forms were received in the office of the Deputy Settlement Commissioner long before 3C‑7‑1960, but the facts were misrepresented by the Ward‑Incharge dealing with the record of Kamoke that Muhammad Tufail respondent alone was in the field for the transfer of the property in question. The Deputy Settlement Commissioner vide his order dated 30‑7‑1960,. transferred the whole residential portion in favour of Muhammad Tufail respondent as he was shown to be the only applicant for the same. The present petitioners challenged this order in appeal before the Additional Settlement Commissioner who by his order dated 27‑7‑1963, accepted the same and remanded the case to the Deputy Settlement Commissioner to decide it afresh after hearing the parties as the claim forma of Abdul Rashid and Muhammad Rafique (present petitioners) were not considered earlier by the Deputy Settlement Commissioner. It may be pointed out here that the order of the Additional Settlement Commis sioner dated 27‑7‑1963 was not further challenged in revision by Muhammad Tufail. After the remand, the Deputy Settlement Commissioner vide order dated 10‑3‑1964 (Annexure 'B') directed that the portions in possession of each applicant be transferred to him against his respective claim form. Muhammad Tufail challenged this order in appeal before the Additional Settle ment Commissioner who rejected the same vide order dated' 12‑5‑1964 (Annex. 'C') and confirmed the findings of the Deputy Settlement Commissioner, Muhammad Tufail then filed a revision petition before the Settlement Commissioner who accepted the same and transferred the entire residential portion fin favour of Muhammad Tufail respondent. Feeling aggrieved by the impugned order, the petitioners filed the present writ petition before this Court.

2. The learned Settlement Commissioner relying upon Jahan Ara Begum's case (P L D 1963 Kar. 726) came to the conclusion that "the forms of Abdul Rashid and Muhammad Rafique were not submitted before 10‑11‑1959 and when they were submitted to the learned Additional Settlement Commissioner he had no authority from the Chief Settlement Commissioner to receive the same." With due respect I do not agree on these two points with the learned Judge in Jahan Ara eegum's case. In paragraph 16 of the judgment the learned Judge after mentioning the various Notifica tions and press‑notes issued by the Chief Settlement Commissioner from time to time for inviting applications from claimants and non‑claimants, held that "after the expiry of the period fixed by the Notification dated the 28th of October 1959, no fresh applications for transfer of such property could be submitted". On the second point regarding the competence of the Additional Settlement Commissioner to entertain belated claim forms the learned Judge in paragraph 17 of the judgment observed as under:‑ "The third ground raised by the learned counsel, namely that the Additional Settlement Commissioner was not competent to admit any application for transfer is also not without any force. A reference to paragraph 6 of the Settlement Scheme No. 1 would show that all applications for transfer were to be submitted to the Deputy Settlement Commissioner of the area in which the property in question was situated. That Scheme did not empower the Additional Settlement Commis sioner to admit such applications, nor, without amendment of the Scheme, could such a power be conferred by the Chief Settlement Commissioner on the Additional Settlement Com missioner. I, therefore, hold that respondent No. 4 could not be deemed to be an applicant for the transfer of this property, although her time‑barred application was admitted by the Additional Settlement Commissioner." The view taken by the learned Judge in paragraphs 16 and 17 of his judgment is not correct after the Supreme Court decision in Ch. Altaf Hussain's case (P L D 1965 S C 68). In this case Ch. Altaf Hussain's belated claim form was entertained by Mr. Bashir Ahmad, the then Additional Settlement Commissioner, on 1‑12‑1959, when there was even no. Notification or press‑note in existence extending the date for submitting belated claim forms. When this case was in the High Court before the learned Single Judge, a similar objection was taken that Mr. Bashir Ahmad, Additional Settlement Commissioner, was not competent to entertain the belated claim form of Ch. Altaf Hussain on 1‑12‑1959. This objection was overruled and the case was decided in favour of Ch. Altaf Hussain (P L D 1961 Lah. 449). However, on appeal the Letters Patent Bench reversed the decision of the learned Single Judge and accepted the appeal. Ch. Altaf Hussain then approached the Supreme Court of Pakistan through Special Leave to Appeal. It appears that their Lordships mere conscious of these two points and at page 77, it is observed that "the contention was raised in the High Court that this form had been accepted by an officer who was not authorised to admit it and that in any event it was presented at a time when no orders existed allowing extension of time for its presentation. While dealing with this aspect of the case their Lordships were pleased to observe as under :‑ "The contention that this form was submitted out of time is grounded on paragraph, 2, Chapter II of Settlement Scheme No. I prepared by the Chief Settlement Commissioner under directions of the Central Government by virtue of powers conferred by section 16 (1) (b) and (c) of the Act. This paragraph 2 of Chapter 11 prescribes that the Chief Settlement Commissioner, 'shall from time to time by notification in the official Gazette, invite applications for the transfer of property under this Scheme from such persons as may be specified in the notification.' The argument was advanced in the High Court and has been repeated before us that only two Notifications were issued by the Chief Settlement Commissioner under this provision, which are printed at pages 305 and 73 of the Manual. By the first Notification dated the 19th of May 1959, the last date fixed for applications under paragraph 2 of Settlement Scheme No. I was the 15th day of July 1959. Under the second Notification dated the 28th of October 1959, this limiting date was extended up to the 10th of November 1959. Subsequent to these two Notifications it appears that press‑notes and Memoranda were being issued from time to time by the Chief Settlement Commissioner granting further extension for such applications but it is true that at the time when Mr. Bashir Ahmad accepted the second form of Mr. Altaf Hussain no such extension Memo randum or press‑note existed. Subsequent to that date, however, press‑notes or Memoranda were issued from time to time and applications of this character admitted by the relevant authorities. The contention, therefore, raised on behalf of the Settlement Department as well as on behalf of Mr. Shabbir Husain that the only legal mode of extension possible, of the time limit for such applications, being by a Notification in the Gazette, ail subsequent extensions of time allowed under orders of the Chief Settlement Commissioner were invalid, appears to be contrary to the practice that has undoubtedly prevailed in this respect in the Department. If such a contention is acceded to, all these forms which had been accepted by the Department under subsequent press notes or Memoranda, would have to be treated as without legal sanction. The true view, however, of the provisions of paragraph 2 of Settlement Scheme No. I seems to be that this is a mere enabling provision which empowers the Chief Settlement Commissioner to invite applications for the transfer of property under the Scheme, from relevant persons, from time to time. The paragraph does not in terms authorise him to lay down a limiting date for the purpose and construing this paragraph strictly, it would not be right to impose any such limiting factor into the situation." The appeal of Ch. Altaf Husain was allowed and the case was remanded. Thus it can safely be inferred that both the findings given by the learned Single Judge in paragraphs 16 and 17 of Jahan Ara Begum's case stand overruled by the Supreme Court judgment if not directly at least impliedly. It may be pointed out that the decision in Jahan Ara Begum's case and Ch. Altaf Hussain's case in writ in the High Court was by the same learned Judge namely, Mr. Justice Masud Ahmad. His Lordship expressed two contradictory opinions in these cases on the point under discussion. However, his view expressed in Ch. Altaf Hussain's case has been approved by the Supreme Court. I am, under Constitution, bound by the Supreme Court decision. The date of the Supreme Court judgment is 23-6‑1964, while the Settlement Commissioner disposed of this case on 23‑11‑1964. The decision of the Supreme Curt was binding on all Courts in Pakistan from the date it was announced. The learned Settlement Commissioner was, therefore, under Constitu tional obligation, bound to follow the law enunciated by the Supreme Court on these points. On the day when he disposed of the case the decision in Jahan Ara Begum's case was no longer in the field. Since the impugned order of the learned Settlement Commissioner is mainly based upon Jahan Ara Begum's case, it is liable to be quashed on this short ground alone as that decision stood overruled by the Supreme Court.

3. Another argument can be advanced to support the press‑note Issued by the Chief Settlement Commissioner ex tending the period to submit belated claim forms and authorising the Additional Settlement Commissioner to entertain such claim forms. The reasoning advanced in Jahan Ara Begum's case is that under paragraph 6 of Scheme No. I the Deputy Settlement Commissioner are to receive the applications and that since the Scheme was approved by the Central Government and the press‑note not having been approved by the Central Govern ment, went contrary to the said paragraph 6 of the Scheme and, therefore, it was held that the Additional Settlement Commis sioner was not competent to receive a belated claim form. According to the press‑note the function of the Additional Settlement Commissioner was of a different nature. He had to decide whether a belated claim form should or should not be entertained. He could refuse to entertain such a claim form or he could impose certain conditions for entertaining the same. Once a claim form was entertained by an Additional Settlement Commissioner, then that claim form was sent to the Deputy Settlement Commissioner of the area concerned and under paragraph 6 of the Scheme the Deputy Settlement Commissioner alone was competent to proceed with that matter in accordance with the Scheme. Thus, the function of the Additional Settlement Commissioner to entertain a belated claim form was entirely different from that of the Deputy Settlement Commissioner under paragraph 6 of Scheme No. I. The function of the Deputy Settlement Commissioner under paragraph 6 was not performed by the Additional Settlement Commissioner while entertaining a belated claim form. After entertaining a belated claim form it was sent to the Deputy Settlement Commissioner concerned to proceed with it on merits under paragraph

6. There is, therefore, no violation of paragraph if a belated claim form is entertained by an Additional Settle ment Commissioner. Even if there is any such violation, It being purely an enabling provision, it cannot be declared to have bee done without lawful authority. The Chief Settlement Commis sioner being the head of the Settlement Organization and the author of the Scheme under which a Deputy Settlement Commissioner of the area was required to receive the claim form, if he later on directed that belated claim forms should be enter tained by the Additional Settlement Commissioner, that will not any way affect the validity of his power or the order. The function of the Deputy Settlement Commissioner under para graph 6 is purely of routine type. 1n fact, the whole work is done by his office or subordinate staff. There is no serious adjudication of any right of the parties by the Deputy Settle ment Commissioner under this paragraph. Moreover, the mere fact that instead of submitting the forms before the Deputy Settlement Commissioner they were entertained by the Additional Settlement Commissioner, it will not adversely affect the rights of the opposite‑party. It appears that it was only for the sake of convenience that subsequently the Chief Settlement Com missioner authorised the Additional Settlement Commissioner to entertain the belated claim forms instead of submitting the same to the Deputy Settlement Commissioner. By authorising a higher authority namely, Additional Settlement Commissioner, instead of Deputy Settlement Commissioner, no material irregu larity or illegality has been committed and a mere violation. If any of a procedural rule should not be allowed to stand in the way of doing complete justice. Merely because the Chief Settlement Commissioner authorised the Additional Settlement Commissioner to entertain the belated claim forms, the peti tioners should not be made to suffer if otherwise they are entitled to get the property in their possession. Since no prejudice is shown to have been caused to the contesting respondent by authorising higher authority to entertain belated claim forms, I do not attach any importance to this purely technical plea raised by the respondent. In the circumstances, I find nothing wrong with the press‑note issued by the Chief Settle ment Commissioner extending the period for submitting the claim forms and authorising the Additional Settlement Commis sioners to entertain such claim forms.

4. It was frankly admitted by the learned counsel for Muhammad Tufail respondent that as a matter of fact all the belated claim forms or applications were entertained only by the Additional Settlement Commissioners. In other words, the practice in the Department so far has been that the belated claim forms were not entertained by the Deputy Settlement Commissioners but only by the Additional Settlement Commis sioners. This being the factual position another question which arises for consideration is whether such a practice adopted by the Settlement Department should be ignored merely on a technicality which may ultimately result in injustice to many displaced persons. It is now well settled principle that such a departmental practice whether right or wrong, should not be disturbed on mere technicality. If the contention of the contesting respondent is accepted, It will upset many displaced persons and will create serious complications for the Depart ment. I am not, therefore, in favour of upsetting such practice adopted by the Settlement Department.

5. It was admitted by the learned counsel for Muhammad Tufail respondent that at the relevant time the petitioners were in possession of a portion of the house in dispute. It appears difficult for him to deny this fact because Muhammad Tufail in his CH form against column No. 10 has himself admitted the possession of the petitioners. Similarly, Annexure 'R/1' filed with the written statement by Muhammad Tufail also shows the possession of the petitioners. The finding, therefore, of the learned Settlement Commissioner that Abdul Rashid and Muhammad Rafique petitioners were not in possession is not correct. In this background Abdul Rashid being a claimant in possession, and his claim form having been entertained within the prescribed period, he was entitled to keep that portion in his possession unless his opponent had prior possession. There is no material on the record and no finding given by any Settlement authority that possession of Muhammad Tufail respondent was prior to that of the petitioners. Similarly, there is no positive material available on the record on the question whether the claim forms of petitioners were received in the office of the Deputy Settlement Commissioner after 30‑7‑1960 when the property was transferred .in favour of Muhammad Tufail respondent. After the remand by the Additional Settlement Commissioner, when the case was waken up by Major T. H. Taqvi, Deputy Settlement Commis sioner, he came to the conclusion that the forms of Abdul Rashid and, Muhammad Rafique were pending in office of the Deputy Settlement Commissioner when a false report was made ‑to him that Muhammad Tufail alone submitted the form for transfer of the property and that the same be transferred to him.

6. The learned counsel for the petitioners vehemently argued that the order of Khan Ata Mohy‑ud‑Din Khan, Additional Settlement Commissioner, Lahore, dated 27‑7‑1963 (Annexure 'A') remanding the case to the Deputy Settlement Commissioner for fresh decision was not challenged further by Muhammad Tufail respondent, although a revision against that order was competent. According to him, that order attained finality and is binding upon Muhammad Tufail respondent. Since I am remanding the case, it is not proper to express any opinion ran this point and other questions of fact. It will be open for the parties to agitate anything they like before the Settlement Commissioner.

7. For the foregoing reasons, the writ petition is allowed and the impugned order of the Settlement Commissioner dated 23‑11‑1964 is hereby quashed and the case is remitted to him for fresh decision in accordance with law after hearing the parties concerned. There shall be no order as to costs. K. B. A. Petition accepted. Case remanded.