2002 PLP 1311 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 25‑5‑1991, passed in Writ Petition No. 932‑R of 1977.

2. Briefly stated the facts of the case are that the predecessor‑in‑interest of the appellants (Mst. Fatima Begum) was running a Fatima Girls High School in Lahore on commercial basis. After independence, the school was shifted to an evacuee property. After her demise in the year 1958, the management of the school was taken over by a partnership firm consisting upon Abdul Hameed and Mst. Razia Bibi, as her successors. The said firm was registered in the name of M/s. Fatima Girls High School. The Managing Partner of the firm applied for transfer of the property in the name of the management on 2‑4‑1959. Vide order dated 1‑3‑1963, the Settlement Commissioner transferred the property in the name of its management and PTO was issued. In the meantime, Abdul Hameed, Managing Partner died and Mst. Razia Begum, the other partner, on 28‑6‑1975 applied for substituting the names of his legal heirs in the transfer document and issuance of PTD in their favour. During the pendency of the application M.L.R. 118 came into force, and vide para.5 thereof the disputed property vested in the Government of Punjab. The management of the school was taken over by the Provincial Education Department. On 16‑10‑1975 the Director Education, Lahore, applied to the Settlement Authorities alleging therein that Fatima Girls High School had since been nationalised under M. L.R.118, the Government of Punjab be substituted as transferee thereof in place of the original management. The said application was accepted by the Deputy Settlement Commissioner vide order dated 15‑7‑1976. Mst. Razia Begum assailed the aforesaid order by way of Writ Petition No. 1131‑R of 1976, which was dismissed by the Lahore High Court vide order dated 2‑1‑1977. As the present appellants were not party to the above-noted writ petition, they separately filed Writ Petition No. 932‑R of 1977, which was dismissed by a learned Division Bench of the Lahore High Court vide impugned judgment. Hence, this appeal

3. Mr. S.M. Masud, ,learned Advocate Supreme Court for the appellants, inter alia contended that the predecessor‑in‑interest of the appellants had paid the entire transfer price of the property in question and necessary transfer documents were issued in their favour; and that the provisions of para. 5 of M. L.R.118 did not contemplate that the Government had become owner in respect of the properties/buildings wherein schools were running, but the provisions of para.5 of M.L.R. 118 envisaged taking over the management of the institutions. In support of his contentions he has relied on Board of Foreign Missions v. Government of Punjab (1987 SCMR 1197), Muhammad Bashir v. Anjuman Himayat‑i‑Islam (PLD 1988 SC 96), and Mst. Khadua v. K.M.C. through Mayor (1983 CLC 535 Karachi) and the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

4. Mr. M. Zaman Bhatti, learned Advocate Supreme Court for the respondents supported the impugned judgment by contending that Mst. Razia Bibi challenged the order of the Deputy Settlement Commissioner, dated 15‑7‑1976, through Writ Petition No. 1311‑R of 1976, which was dismissed by the learned High Court wherein it was held that the property in dispute had been transferred to school and not to partnership firm.

5. We have considered the arguments of the learned counsel for the parties and minutely perused the material available on the file. The contentions advanced by the learned counsel for the appellants are not tenable and the case‑law cited by him does not support the facts of the case in hand. According to the learned counsel for the appellants that by means of order dated 1‑3‑1963, the Settlement and Rehabilitation Commissioner, Lahore, transferred the property in dispute to partnership and not school under section 10(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 read with para.20 of the Settlement Scheme No.l. This point, in our considered view, is misconceived and cannot be accepted, A plain reading of section 10 of the Act shows that it authorises Central Government/the Chief Settlement Commissioner to dispose of the property out of compensation pool. Also, the first part of this section empowers the Chief Settlement Commissioner or any other officer authorised by him to transfer/dispose of any property out of compensation pool on evaluation basis or by sale or by means of auction or otherwise. in accordance with the Schedule to Act. The learned Judge in Chambers of the High Court with sound and cogent reasons has already, dealt with all aspects of the case. It would be advantageous to reproduce here the relevant paragraph of the impugned judgment, which reads as under‑‑ "

7. Furthermore, the perusal of the order dated 1‑3‑1963 totally belies the claim of the petitioners. From the bare reading of the order it becomes clear that Mst. Fatima Bibi predecessor‑in‑interest of Abdul Hameed was allowed to run the school in the premises in dispute. Undisputedly she was neither claiming nor was in occupation of the premises in dispute and was allowed to use the property for running the school in order to advance the cause of education. Abdul Hameed, on her demise, moved for the transfer of the property under section 10(2) read with para.20 of the Settlement Scheme No.I. The impugned order further shows that the Settlement Authorities were conscious about the nature of the transfer from the very inception. The Deputy Settlement Commissioner took up an objection that the application was motivated and Abdul Hameed was looking for some claimant/any other person in order to pay the price of the premises in dispute. This objection of the Deputy Settlement Commissioner was not sustained by the Settlement Commissioner who held that the property was being claimed for the purpose of running school. He, accordingly, transferred the property in dispute to school and for the purpose of running school. From the above it is thus clear that the premises in dispute was transferred to school and it was further specified that it will be used for the purposes of running school and no other purpose. From the above it also becomes crystal clear that the name of the transferee as well as the purpose for which the transfer was made were completely particularised so as to remove any ambiguity. On this, the decision made by the Deputy Settlement Commissioner is eminently correct, just and strict in consonance with the express letter and spirit or order dated 1‑3‑1963. The conclusion of the Deputy Settlement Commissioner neither suffers from jurisdictional defect nor any legal flaw calling for interference in Constitutional jurisdiction of the Court. Having held that the impugned order is not exceptionable I do not feel any necessity to deal with the question of res judicata.

8. As a result of above discussion, this Constitutional petition is found to be wholly devoid of merit and is accordingly dismissed. There shall be no order as to costs.

6. For the facts and reasons stated above, we are unable to find any flaw or legal infirmity in the impugned judgment, which is hereby upheld.

7. Moreover, question of public importance as contemplated under g Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is not made out. The appeal is dismissed leaving the parties to bear their own costs. Q. M. H. /M. A. K./F‑62/S Appeal dismissed.