2012 PLP 202 (YLR)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.--In Writ Petition Nos.144-R/2004, 163-R/ 2005 and 35-R/ 2005 an order dated 3-7-2004 passed by Ch. Ghulam Nabi, Executive District Officer (Revenue)/ Notified Officer, Sialkot has been assailed, therefore, these are being disposed of by this single judgment.

2. The dispute between the parties is in respect of Bungalow bearing Survey No.1/1299, situated at Paris Road, Sialkot, which was placed in the Earmarking Scheme of Settlement and Rehabilitation Department in the year 1959. Mst. Kalsoom-un-Nisa succeeded in earmarking on 13-12-1959. She associated with her real nephew Muhammad Ismail Qureshi by way of Association Deed, processor-in-interest of the respondents in the writ petitions and surrendered all her rights in his favour. Consequently, a PTD for the house was issued in his favour on 7-1-1960. The Settlement Department then marked a portion of the property by a separate number and made it available in the auction, which action of the department was challenged by Muhammad Ismail Qureshi through a civil suit praying for restraining the department for auctioning any portion of the property allotted to him.

3. Later on one Ghulab Din, who was in possession of outhouse filed an appeal before Addl. Settlement Commissioner, Lahore against the transfer of the house in favour of Muhammad Ismail Qureshi. It is pertinent to mention at this juncture that in the said appeal Muhammad Ismail Qureshi was not impleaded as a party and in his absence the appeal was accepted by the Addl. Settlement Commissioner. This order of the Addl. Settlement Commissioner was assailed before the Settlement Commissioner in revision petition, which was dismissed being barred by limitation and the matter was further assailed in the writ petition in this Court, which was also dismissed on the ground that the petition suffered from laches. The matter was then taken up by the Apex Court through Civil Appeal No.150 of 1975, which was accepted by the Hon'ble Supreme Court vide judgment dated 19-3-1988, reported as 1988 SCMR 1001. It was observed by their Lordships that the order of allotment procured by Ghulab Din was obtained in the absence of the allottee Muhammad Ismail Qureshi, who was not heard by the Addl. Settlement Commissioner, consequently the appeal was accepted and the house originally allotted to Mst.Kalsoom-un-Nisa was restored in favour of Muhammad Ismail Qureshi.

4. During the course of the litigation Ghulab Din surrendered his rights in property allotted to him in favour of one Mian Muhammad Ismail, now represented through legal heirs, the petitioners, Dr. Khalida Ismail and Mian Muhammad Muzaffar and others. Afterwards Mian Muhammad Ismail applied for the transfer of the surplus land in his favour while Muhammad Ismail Qureshi submitted an application for transfer of the property as restored by apex Court in his favour. The request of Mian Muhammad Ismail was turned down by the Settlement Department while the request of Muhammad Ismail Qureshi was accepted by the Member, Board of Revenue/Chief Settlement Commissioner, Punjab, vide order dated 26-12-1992. Prior to this order the Addl. Deputy Commissioner (General)/Notified Officer, Sialkot vide order dated 3-6-1990 after carrying out the measurements recommended the transfer of the property in favour of Muhammad Ismail Qureshi.

5. In Writ Petition No.33-R/1993 the order of Chief Settlement Commissioner/ Member, Board of Revenue dated 26-12-1992 regarding the allotment of the property in favour of Muhammad Ismail Qureshi was assailed. That writ petition was accepted by this Court vide order dated 24-10-2001 determining the fact that the out house attached with the house allotted to Muhammad Ismail Qureshi was not part of that house, thus remitted the case to the Notified Officer having jurisdiction in the matter to calculate and determine the excess area and dispose of the same in accordance with law. After the remand of the case the matter was taken up by Ch. Ghulam Nabi, Executive District Officer (Revenue), Sialkot and after hearing the concerned parties he by way of the impugned order recommended that the transfer order of entire Bungalow No.1/1299, Paris Road, Sialkot be issued in favour of successors of Muhammad Ismail Qureshi.

6. The petitioners in all these three petitions being dissatisfied with the verdict of the Notified Officer/Executive District Officer (Revenue) have assailed the same in the instant three constitutional petitions, separately.

7. Learned counsel for the petitioners including learned Addl. Advocate-General have attacked the impugned order mainly on the ground that the Notified Officer had been de-notified, as such it was not within his jurisdiction to decide the matter on 3-7-2004; that Mian Muhammad Muzaffar etc. was not heard by the learned Notified Officer, as such he has been condemned unheard; that the Notified Officer before passing the impugned order did not visit the site, as such measurements given by him are presumptive; that the Notified Officer did not comply with the terms of remand order passed by this Court dated 24-10-2001, as such the same is bad in law and that the Notified Officer did not determine the genuineness of Association Deed executed by Mst. Kalsoom-un-Nisa in favour of Muhammad Ismail Qureshi. According to the learned counsel the same was fabricated after the death of the lady, who did not appear before the Settlement Authorities for making her statement. Learned counsel have also cited the case law in support of their submissions.

8. Learned counsel for the private respondents while supporting the order of the Notified Officer submitted that on the day on which the impugned order was passed Ch. Ghulam Nabi was very much a Notified Officer, who had also inspected the spot and heard the parties at length, comprehensively determined the point in issue vide order assailed in these writ petitions. It is further contended by the learned counsel for the respondents that the matter of execution of Association Deed by Mst. Kalsoom-un-Nisa in favour of her real nephew was not the mandate of the order dated 24-10-2001 and was a past and closed transaction, as such it was not within the jurisdiction of the Notified Officer to comment upon the same.

9. Anxious thoughts have been given to the submissions made by the learned counsel for the parties and with their able assistance the whole record of the case along with the case-law cited at the bar has been examined thoroughly.

10. Learned counsel for the petitioners in support of his first submission has provided this Court a better copy of extraordinary issue of the Punjab Gazette dated 7-7-2004 whereby the powers of Notified Officer were bestowed upon the Member (Judi-II) of Board of Revenue, Punjab. The examination of this notification dated 7-7-2004 shows that the same was effective from the date of its issuance and was not retrospective in its effect, as such the order passed by the Notified Officer on 3-7-2004 was very much within his jurisdiction to decide the matter. Besides this notification the petitioners could not convincingly establish that the Notified Officer did not pass the order on the date mentioned therein, therefore, the argument of the learned counsel is repelled.

11. The other contention of the learned counsel that Mian Muhammad Muzaffar was condemned unheard and the order dated 3-7-2004 was passed at his back has also no substance for the reason that throughout the proceedings initiated by the petitioners after the death of their predecessor-in-interest Mian Muhammad Ismail, Maj. (R) Pervaiz Iqbal is prosecuting the matter on behalf of his wife Mst. Khalida and others. Mian Muhammad Muzaffar is also one of those persons on whose behalf said Maj. (R) Pervaiz lqbal conducted the proceedings in the instant case also without any objection from either party, which is reflected from the order sheet appended with the writ petition. During all these proceedings after the remand only the attendance of the Maj. (R) Pervaiz Iqbal has been marked while none of the other legal heirs of Mian Muhammad Ismail have appeared before the Notified Officer

12. Coming to the third submission of the learned counsel for the petitioners that the Notified Officer passed the order without inspecting the site, after the examination of the record this contention proves to be fallacious. The order sheet reveals that on 31-1-2004 it was recorded by Notified Officer that the case was adjourned for the spot inspection and arguments to 17-2-2004. On the adjourned date the staff of the Building Department was not present due to which the site could not be inspected, which was then inspected on 13-3-2004 in the presence of Maj. (R) Pervaiz Iqbal, who was present at that stage. An Advocate and Dilawar Hussain Head Clerk Settlement were also present. The Notified Officer recorded the statement of Maj. (R) Pervaiz Iqbal and Mr. Maqsood Ahmad, Advocate, counsel for Muhammad Ismail Qureshi and also heard the partial arguments of the parties. In the presence of this record, which enjoys presumption of truth, the argument of the learned counsel for the petitioners has no legs to stand.

13. It is also wrongly argued on the side of the petitioners that the Notified Officer did not comply with the directions contained in order of this Court dated 24-10-2001. It was not pointed out during the course of arguments as to which point had not been considered by the Notified Officer about which he was directed by this Court. It appears that it was an argument for the purpose of an argument and nothing else. Last ground of the petitioners is that the Notified Officer did not determine the genuineness of the Association Deed executed by Mst. Kalsoom-un-Nisa in favour of Muhammad Ismail Qureshi. It is noted that the Hon'ble Supreme Court in the reported case supra between the same parties after accepting the Association Deed of Mst.Kalsoom-un-Nisa with Muhammad Ismail Qureshi restored the allotment in favour of the latter, thereafter it was not within the jurisdiction of any Court or Tribunal to ponder upon the question of determination of the Association Deed. The Notified Officer had rightly did not touch this point, which was settled by the Apex Court in its reported judgment.

14. The Notified Officer after examining the pros and cons of the case jotted down the objections raised by the parties, has very comprehensively determined the question of the measurements of the excess area and has rightly recommended the issuance of transfer order in 'favour of Muhammad Ismail Qureshi. This Court sees no reason to interfere into the findings of fact recorded by the Notified Officer.

15. For the foregoing, these petitions bereft of merits are dismissed with costs. H.B.T./M-257/L Petition dismissed.