1988 PLP 1015 (CLC)

This, petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question orders dated 13‑6‑1960, 25‑4‑1973 and 17‑6‑1976 respectively passed by the Additional Settlement Commissioner (Judicial) Lahore, Deputy Settlement Commissioner Centre‑II, Fareed 'Kot House, Lahore and Settlement and Rehabilitation Commissioner, Lahore Division, Lahore. Mst. Nafisa Begum, petitioner had since died and her legal representatives have been brought on record. Ijaz Ahmad respondent No.4 has also died and his legal reprgsentatives have also been brought on record.

2. The facts necessary for the purpqse of this petition briefly stated are that the 'petitioner who is.the mother of respondents Nos.4 to 8 applied on C.H. form for transfer of House No. S.W‑III‑70‑S‑8, Krishan Nagar (now called Islampura) Ldhore. A Provisional Transfer Order (P.T.O.) was issued in her favour on 21‑1‑1960.

3. Respondent No.4 son of the petitioner, preferred an appeal against the aforementioned order of transfer before the learned Additional Settlement Commissioner (Judicial), Lahore claiming that he is entitled to the house as an allottee And that his form CH was not considered by the Deputy Settlement ‑Commissioner while transferring the. house to the petitioner. This appeal was accepted by the learned, Additional Settlement Commissioner vide order dated 13‑6‑1960 and respondent No.4 was joined in the transfer. It was also directed that Provisional Transfer Order (P.T.O.) be amended accordingly.

4. The petitioner on 23‑10‑1967 filed a revision against the order of Additional Settlement Commissioner dated 13‑6‑1960 which was dismissed on 17‑11‑1967 by the Settlement _ Commissioner, inter alia, on the ground that it had been filets with a delay of 7 years.. The petitioner did not further agitate the matter.

5. It appears that thereafter another son of the petitioner made a miscellaneous application to the Deputy Settlement Commissioner praying that as the house was jointly occupied, he should also be joined in the transfer and his share be determined against the price to be paid.

6. Ijaz Ahmad respondent No.4 also made an application on .17‑1‑1961. ' He submitted that the apportionment' of share has to be made only between him and his mother. . 7 The Deputy Settlement Commissioner by hi order dated 14‑2‑1968 referred the matter to the Settlement Commissioner for adjudication.

8. The Settlement Commissioner by his order dated 29‑5‑1972 sent back the case to the Deputy Settlement Commissioner holding that he was an appropriate officer to determine the question of apportionment. The matter thereafter was tossed between the various officers of the Settlement Department. Ultimately the Settlement Commissioner directed the Deputy Settlement Commissioner to decide the matter who by his order dated 25‑4‑1973 determined that the share of the petitioner and respondent No.4, the only transferees in the property shall be according to the amount of deferred payment in their respective compensation books and if a balance remains to be paid, demand notices for the recovery of the balance transfer price should be issued to them in the same proportion.

9. The petitioner again preferred an appeal against this order of the Deputy Settlement Commissioner on 21‑5‑1973 which was treated as revision by the learned Settlement Commissioner as at the time of the filing of the appeal Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been deleted. He (the learned Settlement Commissioner) vide his order dated 17‑4‑1976 dismissed the revision of the petitioner as without merit. Hence the present petition.

10. The learned counsel for the legal representatives of the petitioner contended that since the deceased petitioner had ascertained from her sons that they will not claim the house as is shown in column No. 6 of her C.H. form, the form filed by respondent No.4 seeking transfer was only an afterthought and should have been rejected.

11. The only other contention raised by the learned counsel for the petitioner was that respondent,No.4 had not filed any C.H. Form and that he has practised a fraud on his family members as also on the Department.

12. On the other hand the learned counsel for the legal representatives of respondent No.4 contended that the mention in "CH" form of the petitioner that her sons would not claim the transfer of the house in dispute could not bind respondent No.4 who being an allottee had a right to file the form which he did, and the transfer in his favour was lawfully made.

13. The learned counsel next contended that the orders of the Additional Settlement Commissioner (Judicial) whereby the petitioner was also transferred the house in dispute has attained finality as it was only challenged in revision which was dismissed and thereafter the said order was not agitated against. He urged that the transfer in favour of the petitioner could no longer be challenged through indirect proceedings on the basis of miscellaneous application for apportionment of the share of price to be paid.

14. Having given consideration to the controversy I am of the view that the contentions raised on behalf of the petitioner have no force. It has been correctly pointed out on behalf of the contesting respondents that any averment in the form "C.H." of the petitioner could not bind respondent No.4 and be an impediment in his way for making an independent application for seeking transfer of the house in dispute, especially when the said respondent was admittedly not a` signatory to the form of the petitioner.

15. The only other contention of the learned counsel for the petitioner that the contesting respondent had not filed any form and that he had practised fraud in seeking transfer in his favour, is also not tenable. This plea appears to have been raised for the first time before me. The grounds of revision against the first order of transfer in favour of the petitioner which has been annexed with this petition show that this point was not even raised then. The contention that the "CH" form was not filed by respondent No.4 is therefore obviously an afterthought. The revisional order dated 17‑11‑1967 also shows that the only point raised before the learned Settlement Commissioner seas as to that share of price should be paid by Ijaz Ahmad in respect of the property on which finding was that this can be ascertained by the Deputy Settlement Commissioner.

16. Before parting with the case I may also observe that so far as the challenge to the order of learned Additional Settlement Commissioner (Judicial) Lahore dated 13‑6‑1960 is concerned the same suffers from laches, this petition having been filed in 1976. Apart B altogether from the above position, the appellate order was challenged by the petitioner through a revision which was also dismissed on 17‑11‑1967, by the Settlement Commissioner. The said order dated 17‑11‑1967 passed in revision having not been agitated against till date, the order of the Additional Settlement Commissioner, dated 13‑6‑1960 has attained finality and the same cannot be allowed to be C questioned through miscellaneous proceedings initiated for apportionment of the house and of the price of the house in dispute as it would amount to giving relief indirectly which the petitioner had failed to obtain through direct measures. In view of the foregoing discussion there is no merit in this petition and the same is dismissed. There will however, be no orders as to costs. Writ petition dismissed. H . B . T . /N‑97/L Petition dismissed.