1990SCMR1656 (PLP)

(Against the judgment and order dated 31‑3‑1975 of the Lahore High Court, Lahore, in W.P. No. 414‑8 of 1974). (a) Settlement Scheme No. I‑‑‑ ‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to consider whether a local could be transferred a shop as an unattractive evacuee property, if the same had been ordered to be disposed of in open auction, under the policy decision taken by Settlement Authorities on 18‑9‑1964. (b) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 185‑‑‑Finding of fact having been recorded by a competent Authority there was nothing on record to controvert the same‑‑‑No interference was called for. Ata Ullah Malik v. Custodian. Evacuee Property PLD 1964 SC 236; Muhammad Farooq imam v. Claims Commissioner PLD 1964 SC 585 and Ahsan Ali v. District Judge PLD 1969 SC 167 ref; (c) Settlement Scheme No. I‑‑‑ ‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Compliance of order of High Court by Settlement Authorities‑‑‑High Court in earlier litigation while remanding case had formulated four points which had been dealt with by the Settlement Authority after considering merits of the case‑‑‑Petitioner's plea that High Court's order was not complied with by Authority was thus not sustainable‑‑‑Decision of Authority after remand order was also challenged before High Court by appellant in Constitutional petition‑‑‑High Court after considering merits of case rightly dismissed 'appellant's Constitutional petition. (d) Settlement Scheme No. I‑‑‑ ‑‑‑‑Preamble‑‑‑Settlement Scheme No. 1 does not make any provision for the transfer of shop through negotiation. (e) Settlement Scheme No. I‑‑‑ ‑‑‑‑Preamble‑‑‑Unattractive property‑‑‑Transfer of‑‑‑Essentials‑‑‑Unattractive property could be transferred to any person including a non‑local and a local who was prepared to offer at (cast 25% of the reserved price‑‑‑Under Policy decision taken by Settlement Authorities on 18‑9‑1964, those houses and shops which we're put to auction at least twice and could not fetch reasonable price were to be transferred to occupants of such premises if they agreed to pay at least 25 per cent of reserve price. (1) Settlement Scheme No. I‑‑‑ ‑‑‑‑Preamble‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Premises transferred to person in accordance with Policy decision of Settlement Authorities whereby belated C.H. Form could also be entertained‑‑‑Settlement Authority had taken into consideration entire facts and transferred shop to contesting respondent‑‑ High Court having concurred with decision of Settlement Authority on question of fact there was no force in appeal‑‑‑Appeal dismissed in circumstances. A.R. Sheikh, Senior Advocate Supreme Court and S. Inayat Hussain, Advocate‑ on‑Record for the Remaining Respondents. JUDGMENT ABDUL QADEER CHAUDHRY, J.‑‑‑Leave to appeal was granted to consider, the question whether a local could be transferred a shop as an unattractive evacuee property; if the same had been ordered to be disposed of in open auction, under the policy decision taken by the Settlement Authorities on 18‑9‑1964.

2. The facts briefly stated are that the respondent Khusht Muhammad, a local, was in possession of the disputed shop. The allotment was confirmed in his name on 7‑1‑1954. The respondent submitted an application on 22‑1‑1900 that the shop may be transferred to him but this application was dismissed on the ground that the respondent No. 2 had not riled any form for the transfer of the property. The shop was put to auction twice but as the highest bid offered was less than 25% of the reserve price it was treated as an unattractive property. The appellant who is a claimant displaced person made an application for the transfer of the shop and offered to pay 1/4th of the reserve price. The Deputy Settlement Commissioner by means of order dated 10‑12‑1964 recommended that the shop in question be transferred to the appellant at the price of Rs. 4,

500. The order of the Additional Settlement Commissioner has not been placed on record. However, the P.T.O. dated 10‑12‑1904 shows that it was transferred by the Additional Settlement and Rehabilitation Commissioner, Lahore Division. A P.T.D. was issued in his favour on 5‑1‑1965 subsequently. After the transfer of the shop to the appellant, an application was moved by the respondent No. 2 to the Additional Settlement Commissioner for the transfer of the shop. The respondent No. 2 also filed an appeal on 6‑1‑1965 in the Court of Settlement Commissioner challenging the order of transfer made in favour of the appellant. This appeal was accepted by the Settlement Commissioner on 19‑5‑1965 and it was ordered that the shop in dispute may be transferred in favour of respondent No.

2. The appellant challenged the order of transfer in a Constitution Petition in the High Court. This petition was accepted on 19‑3‑1973 and the case was remanded. The respondent No. 1 by his order dated 31‑1‑1974 accepted the appeal of the respondent No. 2 and transferred the shop in his favour for Rs.6,

000. This order was challenged in the High Court but without any success. A Petition for leave to appeal was riled in this Court and leave was granted.

3. Learned counsel for the appellant has submitted that the appeal filed by the respondent No. 2 on 6‑1‑1965 was barred by time and the delay could not be condoned. The Additional Settlement Commissioner in his order dated 31‑1‑1974 had condoned the delay on the grounds which read as follows:‑‑ "

I find that Khushi Muhammad, a petitioner inspected the record of the property on 2‑1‑1965 and then applied for a certified copy of the order on 5‑1‑1965 which was supplied to him on 6‑1‑1965. He filed a revision on 9‑1‑1965 for setting aside the order of the transfer of the shop passed by the learned Additional Settlement Commissioner on 10‑12 1964. It means that the petitioner had come to the knowledge of the impugned order on 2‑1‑1965 and filed a revision/appeal on 9‑1‑1965 which is within 15 days from the date of knowledge." He further observed that the present appellant could not substantiate that the respondent was in the knowledge of the order prior to the inspection of the tile.

4. A finding of fact has been recorded by a competent authority and there is nothing on record to controvert this finding of fact. The learned counsel has referred to Ata Ullah Malik v. Custodian, Evacuee Property P L D 1964 SC 236: Muhammad Farooq imam v. Claims Commissioner PLD 190.1 SC 585 and Ahsan Ali v. District Judge PLD 1909 SC

167. These authorities do not help the appellant as a positive finding has been recorded against him.

5. The learned counsel next contended that the High Court had formulated four points when it remanded the case to the respondent No. 1 but no decision was given on these points. These points are as hereunder:‑‑ (ii) Whether respondent No. 2 was a local or a displaced person? (iii) Whether an unattractive shop could be transferred to a local? (iv) Whether any application was ever riled by respondent No. 2 for the transfer of the shop in dispute? 6 These questions have been dealt with by respondent No. 1 and after considering merits of the case he passed the order in favour of respondent No.

2. Therefore, it cannot be said that the respondent No. 1 had not complied with the order passed by the learned High Court. The matter was again challenged before the High Court which after considering the merits of the case dismissed the Constitution Petition filed by the appellant.

7. The learned counsel next contended that the disputed shop could not be transferred to the respondent No. 1 under Settlement Scheme No.

1. This contention has no force because on the same analogy it could not be transferred to the appellant by way of negotiation. The Settlement Scheme No. 1 does not provide any provision for the transfer of the shop through negotiation. The proper procedure had not been adopted when shop was transferred to the appellant. The shop in dispute is admittedly in occupation of the respondent No. 2 since 7‑1‑1954 and this shop was allotted to him by the competent authority. He had submitted an application on 22‑1‑1960 for the transfer of the shop but it was rejected. The shop was put to auction on I1‑5‑1960 and then on 20‑11‑1964 but the highest offer was less than 25% of the reserve price. It was, therefore, treated as an unattractive property. Under instructions dated 5‑7‑1961, an unattractive property may be transferred to any person including a non‑local and a local who is prepared to offer at least 25% of the reserve price. Under policy decision taken by the Settlement Authorities on 18‑9‑1964 (Page 522 of the new Settlement Manual) it was decided that the houses and shops which are put to auction at least twice and could not fetch reasonable price should be transferred to the occupants of such houses if they agree to pay at least 25% of the reserve price. Belated C.H. application forms should be accepted by the Deputy Settlement Commissioner from such occupants and disposed of on merits. Thus according to this policy decision even belated C.H. form could be entertained. The shop was rightly transferred to the respondent No. 2 in accordance with the policy decision. The respondent No. 1 has taken into consideration the entire facts and transferred the shop to the respondent No.

2. The High Court has concurred with the said decision. There is no force in this appeal. The same is dismissed with no order as to costs. A.A./M‑1376/S Appeal dismissed.