1987 PLP 140 (SCMR)

The entitlement of the appellant Ata Muhammad on his application for transfer under Settlement Scheme No.VIII came up for consideration before the Deputy Settlement Commissioner on 3‑4‑1967 and the following order was passed‑‑ "Ata Muhammad present in person. As reported above, the P.T.D. of Property No. P‑219, Ward No.5, has since been issued and thus the property is not available under Settlement Scheme No. VIII. The CS Form submitted by Ata Muhammad is hereby rejected." The auction‑purchaser, sold half of the share in the shop to his brother on 18‑7‑1967 and they instituted a petition for eviction of the appellant Ata Muhammad before the Rent Controller on 21‑12‑1967. The appellant Ata Muhammad submitted his reply to the eviction application on 20‑3‑1968 claiming that he was entitled to the transfer of the shop under Settlement Scheme No.VIII and that his claim was still pending adjudication before the authorities and the auction‑purchaser or transferee form him could not secure his ejectment. It was on 10‑2‑1970 that Ata Muhammad filed an appeal against the order of the Deputy Settlement Commissioner, dated 3‑4‑1967. The Additional Settlement Commissioner dismissed this appeal on 6‑5‑1970 and the operative portion of his order is in the following terms‑‑ "It appears that the rights of the appellant have been affected by the auction of the property and its further confirmation by the Additional Settlement and Rehabilitation Commissioner in specific disregard of the instructions issued by the Chief Settlement Commissioner to all the Deputy Settlement Commissioners. No doubt the shop was available for transfer to the appellant who validly submitted CS Form under Settlement Scheme No.VIII. The auction should not have been confirmed during the pendency of the form of the appellant. But in this case the respondent has succeeded in getting the P.T.D. after making payment of all the dues and this Court has no jurisdiction to set aside the auction proceedings at this stage when the P.T.D. has already been issued." Both the parties to that appeal filed separate revisions before the Settlement Commissioner. The revision of the appellant Ata Muhammad was accepted and a direction was given to the Deputy Settlement Commissioner to dispose of the form filed by him under Settlement Scheme No.VIII on merits. The revision filed by the auction‑purchaser and the transferee from him was dismissed. The reasoning which prevailed with the Settlement Commissioner appears from the following observations contained in his order "True enough that proceedings of auction had taken place before application for transfer of the very property was made by the petitioner Ata Muhammad yet proceedings of auction since confined to an offer, the acceptance of which could only be of any legal source of right to the one making an offer, could not create any right in the property or give any locus standi to the bidder. As compared a person who had applied for the transfer of the property held a promised interest in that property. Unless, therefore, such an application had been disposed of, the proceedings of auction even culminating with their confirmation would be of no legal consequence. Accordingly therefore, the view that auction proceedings would not at all oust the petitioner Ata Muhammad from the field would be just and sanguine, as also the contention that in the presence of the application for transfer of the very property still remaining to be disposed of, confirmation by the Addl. S.C. would be both improper and illegal. " The bar of limitation was ruled out as the order of the Deputy Settlement Commissioner against which appeal was required to be filed was found be to outside his lawful authority and void. The respondents thereafter instituted a constitutional petition (98‑R of 1973) against the dismissal of their revision petition and the acceptance of that of the appellant. In the meantime, on 25‑1‑1978 the Deputy Settlement Commissioner re‑examined under the remand order, the entitlement of the appellant, and found him entitled to the transfer of the property and passed an order accordingly. The respondents invoked the constitutional jurisdiction directly against this order of the Deputy Settlement Commissioner but their petition was dismissed as the remedies of appeal etc. had not been exhausted and their Petition for Leave to Appeal (C.P.No.239 of 1973) was also dismissed on 27‑11‑1973. Ultimately, the Constitutional petition (98‑R of 1973) came up for decision before a learned Judge in Chambers who found the facts of the case identical with the facts of another case, Muhammad Usman in Writ Petition No.1185‑R of 1968 which had been decided by a Division Bench of the same Court and against which Leave to Appeal had been refused. The identical nature of the facts and law and the compulsive effect of the decision given therein appear clearly from the following remarks contained in the judgment "First is that in almost identical set of facts when the suction was held of the shop in dispute as well as of another in the same locality on the same date viz. 27‑6‑1966, the auction of the other shop was challenged and transfer claimed under the Revised Settlement Scheme No.VIII by one Muhammad Usman through W.P.No.1185/R/1966. The writ petition was dismissed by a learned Division Bench of this Court consisting of Mr.Justice Muhammad Iqbal and Mr.Justice K.E.Chauhan on 6‑12‑1967 and the order was upheld by their Lordships of the Supreme Court of Pakistan when Muhammad Usman's Civil Petition for Special Leave to Appeal No.132 of 1968 was dismissed on 17‑10‑1968. It would be inapt as well as not possible for this Court to come to any other decision than the one arrived at by the learned Division Bench of this Court and their Lordships of the Supreme Court of Pakistan. There is no distinction except that Muhammad Usman in the aforesaid case was a local and Ata Muhammad contesting respondent in this case, is a claimant. But this distinction is not material because the controversy in the aforesaid case centered round the facts that auction had taken place and the person in possession was claiming transfer under the Revised Settlement Scheme NO.VlII meant for "available" properties ..... Consequently, for this reason alone, the order of the learned Settlement Commissioner, dated 7‑10‑1972 is contrary to law as declared by the learned Division Bench of this Court and their Lordships of the Supreme Court of Pakistan. The said two judgments upheld the auction conducted on the same date and in identical set of circumstances. Therefore, auction in favour of Imam‑ud‑Din has got to be upheld as well for the reason given in the aforesaid two judgments, which are binding on this Court. This should clinch the matter In view of the reasons given above and the decision of the learned Division Bench of this Court as upheld by their Lordships of the Supreme Court of Pakistan maintaining the auction of the same date and place, in identical set of facts and applicable law thereto, there is no option but to accept this writ petition. Therefore, the order of the learned Settlement Commissioner, dated 1‑10‑1972 is declared to have been passed without lawful authority and of no legal effect. The result would be that the auction in favour of Imam -ud‑Din as confirmed and for which a permanent Transfer Deed had been issued in his favour shall remain intact and rights acquired under sale‑deed and by inheritance would remain devolved according to entitlement." The constitutional petition was allowed and the auction in favour of the respondents was held lawful and the P.T.D. kept intact rejecting the claim of the appellant. Leave to appeal was granted to examine whether in view of the ban imposed by a telegraphic order, the auction held in contravention of it, could be sanctified in constitutional jurisdiction. Additionally, whether the Settlement Authorities had not given plausible reasons for condoning the delay in filing the appeal before the Additional Settlement Commissioner against the order, dated 3‑4‑1967 and as such that question could not be re‑opened and a decision to the contrary recorded in constitutional jurisdiction. Finally, whether the decision of the case whose binding effect was assumed by the learned Judge in Chambers was not distinguishable on material points. Mr. Zaki‑ud‑Din Paul Advocate, the learned counsel for the appellant, had distinguished the judgment of the High Court as well as the order refusing Leave to Appeal in Muhammad Usman's case on numerous grounds. Firstly, it has been contended that Usman was a local while the appellant was a claimant displaced person. Muhammad Usman had no eligibility or entitlement and had asserted none whatsoever till the date of auction and even afterwards. He made a request for amendment of the constitutional petition with a view to raise a claim under Settlement Scheme No.VIII after eligibility in favour of locals had been created. In the case of the appellant notwithstanding the technical defect of not‑filing a proper form he had been pressing his claim for this shop as a claimant displaced person in occupation of it since long before the target date which had been the subject‑matter of serious contentious litigation before the Settlement Authorities. In such a situation when he had even formally applied under the Scheme before the auction was confirmed, while such was not the position in Muhammad Usman's case, he could not be brought at par with Muhammad Usman for the purposes of deciding the case. Finally, on this point it is stated that there was no confirmation order in favour of the respondents and none is available to date. The conditional order could not be taken by the Settlement authorities to be an unconditional order and unless the eligibility of the appellant was examined independently of such a conditional confirmation order the condition remained unsatisfied and a P.T.D. could not be issued. Such was not the position in Muhammad Usman's case. As regards the embargo placed by the telegram, it is contended that though the High Court may in its constitutional jurisdiction not give effect to it but the subordinate Settlement authorities were bound to implement it and they have not only implemented it but also in implementing it complied with the conditional order of confirmation recorded by the Additional Settlement Commissioner. No legal defect could be found with it while exercising constitutional jurisdiction. As regards the question of limitation, the learned counsel for the appellant pointed out that the Settlement authorities had fully adverted to it, both the Additional Settlement Commissioner as well as the Settlement Commissioner had given reasons in support of condoning the delay. It might have been possible for the learned Judge in Chambers, according to the learned counsel for the appellant, to take a different view of the matter but that would hardly justify the interference with the conclusions of Tribunals of exclusive jurisdiction. Finally, the learned counsel for the appellant has pointed out that as the highest bidder the respondents could claim no vested right to set up against the appellant, a claimant displaced person in occupation of the property, whose application under Settlement Scheme No. VIII was pending although it may have been filed after the date of the auction. The learned counsel has relied on decisions in Abdul Ghafoor v. Muhammad Bux 1982 S C M R 364, Mst. Zarina Rauf Butt v. Malik Aziz Ahmed P L D 1982 S C 272, Meraj Din v. Noor Muhammad 1970 SCMR 542 and a number of other cases all of which need not be cited here. Mr. Zaka‑ur‑Rehman, Advocate the learned counsel for the respondents, on the other hand, contended that the possession of the appellant could not be said to be undisputed because it was unauthorised, as he had not cleared the rent till long after P. T . D . had issued to the respondents. Besides, his was a case suffering from extreme laches. He got full notice of the fact that P . T . D . had issued and his claim stood rejected in 1967. He knew all this, in any case, in 1968 when he filed his reply to the ejectment application pending before the Rent Controller. In spite of it, he filed an appeal before the Additional Settlement Commissioner on 10‑2‑1970 and pleaded ignorance of the transfer or rejection of his form under Settlement Scheme No. VIII. The learned counsel for the respondents has relied for these propositions on decisions in Muhammad Ismail v. Member, Board of Revenue, Punjab 1985 S C M R 113, Ghulam Muhammad v. Chief Settlement Commissioner 1969 S C M R 315, Pir Riaz Ali Shah v. Zamirul Haque and Azizul Haque 1984 S C M R 1256 and Mst. Mehraj Begum v. Settlement & Rehabilitation Commissioner 1981 S C M R

717. According to the learned counsel, the instructions of not holding the auction were passed, if at all, by an authority of co‑ordinate jurisdiction and could not supersede the order of the Settlement Commissioner upheld in constitutional petition and Letters Patent Appeal directing disposal of the shop by auction. According to the learned counsel, telegraphic instructions command no respect either in law or in propriety. He relied on the decisions in Sultan Mahmud Excise & Taxation Inspector, Peshawar v. Government of West Pakistan P L D 1964 S C 302, and Income‑tax Officer (Investigation) Circle III, Dacca and Pakistan v. Shaikh Nasim Anwar P L D 1966 S C

775. As regards the question of conditional confirmation, the learned counsel contended that there was no condition attached at all to the confirmation and the one appearing on the record is forgery. Shorn off the technicalities, there are two ways of looking at the order of the Settlement Commissioner, dated 17‑12‑1967 confirming the auction conditionally. We have that order before us and find that, there is no intrinsic evidence of any portion of it being forged. No authority has held so. This question was not raised before any authority's though the decision rested on the ground that the order of confirmation was conditional. The first is to take it as it is, to consider it legal' and proper, just and fair, and the other, as contended by the learned counsel for the respondents to treat it as without jurisdiction for the sole reason that it incorporated a condition without the satisfaction of which the confirmation itself could not take place. Taken on its face value, permanent transfer deed could not issue to respondents without first deciding the question of availability of property nor could the decision of the question of availability of property be deferred till Permanent Transfer Deed had issued or the issuance of the P.T.D. could be made a relevant ground for not deciding the question at all. On this view of the matter, the issuance of the P.T.D. by the Settlement authorities and the refusal of the Deputy Settlement Commissioner to decide the question for the sole reason that Permanent Transfer Deed had issued would be in clear violation of the very order of the Additional Settlement Commissioner. On the second view canvassed by the learned counsel for the respondents, the auction would still be awaiting satisfaction of the condition and thereafter confirmation or refusal of confirmation. In either case, the Permanent Transfer Deed had issued without lawful authority and had to be ignored. There appears to be no legal defect in the order of the Additional Settlement Commissioner, dated 18‑12‑1966 making the confirmation dependent on the decision of the availability of the property. Para 11 of the Schedule to the Displaced Persons (Rehabilitation and Compensation) Act (hereinafter referred to as the Act) provided that "shops not transferred under paragraphs 8 and 9 shall be sold to the highest bidder in an unrestricted public auction". Paras. 8 and 9 provided in the following terms:‑‑ "(8).‑‑ A shop in possession of a claimant or a parent, son, daughter or spouse of the claimant, being a shop which such parent, son, daughter or spouse does not claim under the provisions of this Schedule, and if there is more than one such shop, then, any one of the shops which the claimant desires to retain, shall be transferred to him at a price determined on evaluation basis: Provided that if a shop or part thereof is in the possession of more than one person and one of them is a claimant then the shop shall be so transferred to the claimant; Provided further that if a shop or a part thereof is in possession of more than one claimant, then the shop shall be transferred to the claimant who obtained prior possession. (9) A shop in possession of a Non‑claimant Displaced Person and which the non‑claimant desires to retain shall be transferred to him on payment of the prevailing market value: Provided that no more than one shop shall be transferred to anyone non‑claimant under this paragraph: Provided further that if there is more than one applicant for the transfer of the same shop, the shop shall be transferred to the non‑claimant who obtained prior possession." The desire of the appellant Ata Muhammad to have the shop transferred was clear and none of the Settlement authorities right from 1960 when he appeared before the Deputy Settlement Commissioner, on 23‑1‑1960 and made a claim that he was in possession and wanted its transfer doubted his desire for it. He was in fact found to be in possession, since long before the target date. The Act shows a marked solicitude for the claimant displaced persons and this was made clear by this Court in the case of Sh. Rehmatullah v. The Deputy Settlement Commissioner, Centre 'A' Karachi P L D 1963 S C 633 and Ilam‑ud‑Din v. The Chief Settlement and Rehabilitation Commissioner P L D 1965 S C 615 wherein they were designated as vested beneficiaries. In Barkat Ali v. Muhammad Sharif, and Settlement and Rehabilitation Commissioner, Lahore P L D 1966 S C 817, the following observations were made‑‑ "A study of the provisions of the Schedule makes it clear that the Act fixed the order of preference in respect of transfer of properties in the compensation pool, so as to accord the first place to "claimants", the second place to "non‑claimant displaced persons" and the third place to "locals". The locals were given the benefit of this transfer right, only by the amending Ordinance I of 1959. Before that, the First Schedule to the Act provided that a house in the possession of local since before the 1st of January, 1949 and a shop in the possession of a local or a non‑claimant displaced person could only be sold by restricted auction for the benefit of non‑claimant displaced persons and locals, subject to certain conditions but there was no possibility of their acquiring such property on an evaluation basis, directly." The argument of the learned counsel for the respondents that the appellant had ceased to be a claimant for the reason that he had exhausted his claim in getting some other property or in associating with some one else is not borne out from the record or from any finding of the Settlement authority. On the contrary, it appears that when he was transferred this property in 1973 he made the payment of arrears of rent from compensation book itself. Besides, in the case of Abdul Majid Shaida v. Mst. Noor Jehan and Settlement and Rehabilitation Commissioner, Karachi P L D 1967 S C 221 this Court held that though after fully satisfying the claim, a claimant could not yet remain a claimant, the Court nevertheless proceeded to observe that the prescribed scale of payment makes it clear that under the orders so far issued by the Government the verified claim of no person can be fully satisfied and it is so because on the face of it, the compensation that is received is only a proportion of a verified claim and the scale is itself, subject‑matter of revision from time to time. The learned Judge in Chambers was not, with respect, right in following implicitly what he considered to be the law laid down in Muhammad Usman's case for the distinguishing features were numerous and made the identity on facts or law almost impossible. Usman had himself got the property auctioned and on failing to obtain it in auction he had challenged that auction on certain technical grounds none of which were of avail to him. He was rightly refused relief in the constitutional jurisdiction notwithstanding the prohibition issued by a telegraphic order. Additionally, he was a local, had no semblance of a right at all in respect of a shop till it was created and that was subsequent to the auction held at his own initiative and seeking. There was no conditional order of confirmation of the competent authority, as was passed in this case in favour of the appellant, which prescribed a pre‑condition for confirmation, that his eligibility under Settlement Scheme No. VIII should be considered and when it was independently examined he was found eligible by the Settlement authorities. The contention of the learned counsel for the respondents that the appellant could not be held to be in undisputed possession of the shop because he had not cleared the arrears of rent, has not been found established by any of the Settlement authorities. On the other hand, the first round of litigation established his possession and the extensions in the definition of possession that have taken place concerned the locals and the non‑claimants who are obliged before claiming possession under such an extended definition to clear the rent as well. The cases cited by the learned counsel for the respondents on the subject, all relate either to locals or to the non‑claimants. For example, in the cases of Muhammad Ismail 1985 S C M R 113, in Pir Riaz Ali Shah 1984 S C M R 1256 and in Mst. Mehraj Begum 1981 S C M R 717, the locals were advancing the claim and in Ghulam Muhammad 1969 SCMR 315 a non‑allottee non‑claimant. These cases are not helpful. As regards the question of limitation, it is clear from the orders passed by the Additional Settlement Commissioner and the Settlement Commissioner that they have devoted their attention to the delay, to the reasons accounting for the delay and then proceeded to condone it. The sufficiency of the ground was a question reserved for their determination and discretion. The reasons given do not by any standard appear to be either perverse or fanciful. In the cases of Syed Azmat Ali v. The Chief Settlement Commissioner, Lahore P L D 1964 S C 260, Muhammad Farooq Imam v. Assistant Settlement and Rehabilitation Commissioner, Peshawar P L D 1964 S C 585 and Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner P L D 1966 S C 276, this Court had indicated that there must be something, in the form of an application seeking condonation, in the form of arguments advanced before the Settlement authorities, or in the order itself taking note of it before proceeding to decide matter on merits from which condonation could be inferred by implication. In the case of Ahsan Ali v. District Judge P L D 1969 S C 167, the requirement was summarised as follows:‑‑ "It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits." The discretion exercised by the Settlement authorities for condoning the delay was not open to interference in constitutional jurisdiction on the mere ground that another view was also possible. For the reasons recorded, we accept this appeal, set aside the judgment of the High Court and dismiss the constitutional petition of I the respondents with no order as to costs. S. Q. Appeal accepted.