P L D 1984 Supreme Court 47 (PLP)

SHAFIUR RAHMAN, J.-Leave to appeal was granted to the appellants father and son, who claim to be local occupants of a shop which stand transferred to the respondent No. 1, to examine, inter alia, whether the jurisdictional requirements of second proviso to subsection (12) of section 2 of Displaced Persons (Compensation and Rehabilitation) Act were satisfied in transferring two separate units, a house and a shop, to him when he was not in possession of any portion of the shop. Property No. B-I1I-S-5-43 Mandi Chuhar Kana comprised 4 - shops . and a Chaubara. The Chauhara was in occupation of respondent, a claimant displaced person. The shop, exactly below this, Chaubara (given No. 4 for purposes of description and identification) was in possession of Muhammad Ali, husband of Ghulam Fatima, a claimant displaced person. There was thara (platform) attached to the shop abutting on the road on which business was carried on by Siraj Din and Snehab Din. The other shops were in possession of locals. One such shop (No. l) was in possession of Allah Bux appellant. He and the other locals did not claim or contest the transfers. The respondent, Ishaque applied, according to the appellants, only for the Chaubara, while lshaque insists that he applied on C. H. form for the whole property. Ghulam Fatima the wife of Muhammad Ali applied on C. S. Form for the shop as well as the Chaubara above it. Siraj Din and Shehab Din who were running business on the thara in front of shop in occupation of Muhammad Ali, the husband of Ghulam Fatima, moved for the transfer of shop No.

3. All these forms came up for consideration before the Assistant Settlement Commissioner, Sheikhupura on 2y-12-1959. He held that the locals were not entitled to any portion of the property. The claimants who were running business on the tharas were also not found entitled on the ground that "they are not in possession of any original part of this building". The comparative merits of the case of the respondent Muhammad Ishaque, a claimant, and of Mst. Ghulam Fatima, a non-claimant, were examined and finding Ghulam Fatima to be a non-claimant and lshaque to be a claimant, the latter was preferred. It was also held as a fact that the Cbaubara in possession of the respondent was over two shops while the husband of Mst. Ghulam Fatima was in possession of one shop only. T'he respondent was, therefore, transferred the whole building on evaluation price. A P. T. O. also issued to him accordingly. An appeal was preferred by Mst. Ghulam Fatima alone against this order of transfer which was rejected by the Deputy Settlement Commissioner on 12th March,

960. On a revision filed by her the Additional Settlement Commissioner quashed the orders passed by the Assistant Settlement Commissioner and upheld by the Deputy Settlement Commissioner on the ground that the Assistant Settlement Commissioner was not possessed of the powers of Deputy Settlement Commissioner and hence the disposal of the property by him was without jurisdiction. The Deputy Settlement. Commissioner was directed to undertake afresh the question of disposal of this property. In the second round of proceedings before the Settlement Authorities as regards the claim of Muhammad Ishaque respondent it was noted that apart from being in possession of the Chaubara he was also in: possession of the thara in partnership with Shahab Din and Siraj Din. It was also noted by the Deputy Settlement Commissioner that the respondent was desirous of the transfer of the whole building on his C. H. Form. The Deputy Settlement Commissioner also inspected the spot and found that the building was situate in the best commercial area of the town and he felt that the shops and the residential portion should be disposed of separately. He thereafter chalked out the manner of the disposal of the property and in doing so combined the Chaubara in possession of respondent with shop No. 1 in possession of the appellant observing as follows : "Cbubara, Shop No. 1 and thara marked `B' on the plan is hereby transferred in the name of Muhammad Ishaque who has applied for the transfer of full building. Muhammad Ishaque is already running a shop on the thara marked `A' which I believe cannot be (treated as shop. I do not think the Municipal Committee will allow him to convert it into a shop. This shop is at present in possession of Allah Bux who is not entitled for its transfer being local. I feel that by this way Muhammad Ishaque who is so anxious for the whole unit will be satisfied so that he way be able to earn his bread and butter peacefully." It is not necessary to reproduce the manner of disposal of the other portion of this property for the reason that it is not the subject-matter of this appeal. There were five appeals filed against such a disposal of the property including the one filed by the respondent who wanted shop No. 4 which happened to be directly under the Chaubara. There was also an appeal by Mst. Ghulam Fatima who wanted the transfer of the Chaubara over the shop transferred to her on the basis of the possession of her husband. So far as the claim of Mst. Ghulam Fatima and the respondent inter se was concerned, it was rejected. While rejecting the appeal of the respondent the learned Additional Settlement Commissioner observed as follows :- "

5. Appeal (5) is filed by Muhammad Ishaque, who is the transferee of the Chaubara. He wants a shop as well. This is not. on. I have adopted a principle of dividing the property horizontally and, therefore, he has no lien on this property. His appeal is also rejected. 6. . . . The property has been horizontally divided to give the Chaubara to Muhammad lshaque, one shop to Mst. Fatima and another shop to Muhammad Ishaque. This leaves a balance of two shops which have to be auctioned." The Settlement Commissioner dealt with five revision petitions arising out of it and dismissed all of then. Settlement Scheme No. VIII with regard to the disposal of available property was promulgated on 16th November, 1960 and applications were invited by a notification dated 13th September, 1966. A day before such .a notification ain amendment was made in the Scheme whereby the locals also became entitled to obtain transfer of available property which happened to be in their possession. The appellant Allah Bux claims to be in possession of shop No. 1 since 1936 and had not applied earlier as he was not eligible, being a local, for the transfer of this shop. As soon as he became eligible be filed an application on 29th October, 1964 claiming its transfer and soon thereafter on 7th November, 1966 he filed a constitutional petition in the High Court claiming that the order transferring shop in his possession (shop No. 1) to the respondent was a nullity and that the shop should be treated as an available property and he was eligible and entitled to be transferred that shop. The High Court held that the shop in dispute -was transferred by the Deputy Settlement Commissioner in exercise of the powers vesting in him under the law and the appellant had no locus standi to challenge the transfer nor was the shop an available property for the purposes of Settlement Scheme No. VIII. While dismissing in limine the constitutional petition the learned Judge observed "`the question raised before me pertains to the propriety and legality of the 'order passed by the Deputy Settlement Commissioner which cannot be allowed to be challenged at the instance of the petitioner." A Letters Patent jkppeal was then preferred. The appeal Bench of the High Court affirmed the dismissal of the constitutional petition on the ground that the appellant had no locus stands, that the order of transfer bad become final and that the property under Settlement Scheme No. VIII was no longer an available property. The learned counsel for the appellants contended that the appellants were in possession of this shop since before partition. They were running business in it. They were aware of the proceedings before the Settlement Authorities in respect of the transfer of the premises including this property. Earlier to 12th September, 1966 the appellants could not lay any claim to that property, could not seek transfer of it and could not intervene as an interested person or as an aggrieved person in the proceedings with regard to its transfer. Their previous inactivity, therefore, should not be misunderstood or taken as estoppel. As soon as a right was conferred by law on them they filed an application for its transfer and knowing well that there were departmental orders disposing of the property and the departmental authorities could not at that stage sit on judgment on those orders, they forthwith invoked the constitutional jurisdiction of the High Court for challenging those orders. At that stage they had a locus standi. They were the persons interested in the property. They could lay claim to it if the conditions provided by the statute were satisfied. As regards the satisfaction of the conditions prescribed by the statute it was said that a property in respect of which no transfer order was passed or no transfer documents had been issued could be, by all standards, considered available property. Similarly a property which had been disposed of but had been disposed of by an authority or in a manner that the order disposing it of could be treated as a nullity, or as non-existent, then also the property could be deemed to. be available property. The appellant on the basis of new rights conferred did not claim to jump into the proceedings relating -to the property pending between concerned persons nor wanted the examination of the orders of transfer on the legal plane. What they sought was an examination of the orders passed on the jurisdictional plane with a view to get a determination whether they could be deemed to be a nullity and for that reason non-existent and the property in dispute still available for transfer. In order to show the nature of his interest and the scope of the attack the learned counsel for the appellant has relied on P. N. Bogha v. A. R. Khan (P L J 1975 Lah. 273). As regards the exact challenge to the order of transfer the learned counsel's contention was that the Deputy Settlement Commissioner in exercise of powers under section 2(12) of the Displaced Persons (Compensation and Rehabilitation) Act divided the property into residential units and commercial units, i.e. shops and Chaubara arid it was a horizontal division. With this basic principle of division having been adopted there was no scope left for revoking or ignoring it while making a unit by joining or combining one shop at the extreme end of the building no portion of which was occupied by him with the Chaubara, the residential portion at the other end. Not only was such as amalgamation structurally and physically incongruous and impracticable, it cut across the very principle which had been adopted and made the basis by the Deputy Settlement Commissioner and affirmed in appeal and revision with regard to the division of that property. Such an order, according to the learned counsel for the appellant, which was inherently self-contradictory was a nullity and could not exist in the eye of law, was incapable: of conferring any right on the respondent and so could not be recognized as one legally in existence. Besides, the reason given for amalgamating the shop with the residential portion namely to allow him to "earn his bread and butter peacefully" was totally extraneous to the purpose for which division of the property could be ordered. In this background it was contended that not only the principle of division but also the purpose of transfer both were against the law and on that account such a division and such a transfer must be treated as nullities and the property was still an available property. It has also been contended that till 1968 what had been determined was only the entitlement of the respondent to receive on transfer the residential portion