2002 PLP 1923 (SCMR)

JAVED IQBAL, J.‑‑‑This appeal with leave of the Court is directed against judgment dated 16‑10‑1993 whereby writ petition preferred on behalf of appellant has been dismissed by learned Division Bench of Lahore High Court, Lahore.

2. Leave to appeal was granted vide order dated 13‑2‑1995 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:‑‑ "The petitioner is seeking leave to appeal against the judgment of a learned Judge in Chamber of Lahore High Court dated 16‑10‑1993 whereby Writ Petition No. 24‑R of 1983 filed by the petitioner was dismissed and the order passed by the Settlement Commissioner, Lahore, transferring godown as part of the shop transferred to respondent No.2, Muhammad Ismail (deceased) was upheld. The relevant facts of the case are that property bearing No.SE‑9R‑37, Brandreth Road, Lahore was a composite evacuee property consisting of 2 shops and a godown on the ground floor and 4 residential units on the first floor. The petitioner was in possession of the godown in the building on the ground floor while the residential unit situated over the godown was occupied by Mst. Bashir Khatoon. One shop on the ground floor was in possession of Muhammad Ismail, deceased, while the other shop was occupied by M/s: Associated Electric Corporation. The remaining three residential units on the first floor of the building which were described as Front Upper (Western), Front Upper Portion (Eastern) and Back Portion, were occupied by Ishtiaq Hussain, Muhammad Sharif and Shaifuddin respectively. On the commencement of settlement operation, the petitioner filed CS Form seeking transfer of godown in his possession alongwith residential unit situated over it. Mst. Bashir‑Khatoon applied for transfer of residential unit in her possession alongwith the godown situated underneath on CH Form. Muhammad Ismail, deceased, submitted CS Form for transfer of shop in his possession. Shop in possession of M/s. Associated Electric Corporation was put to public auction which was purchased by Muhammad Ismail. The occupants of remaining 3 residential units in the building also applied for transfer of each unit in their respective possession. The Deputy Settlement Commissioner (D.S.C.) by order dated 31‑12‑1959 transferred the shop in possession of Muhammad Ismail, deceased, to him on CS Form. The godown on the ground floor alongwith the residential portion over it was transferred to the petitioner as one unit against this CS Form. Application of Mst. Bashir Khatoon for transfer of residential unit in her possession was rejected. The occupants of other 3 residential units were transferred the portions in their respective possession. Muhammad Ismail filed appeal against the order of D.S.C. dated 31‑12‑1959 and claimed transfer of entire building as one unit. The Additional Settlement Commissioner (A.S.C.) rejected the appeal by order dated 2‑4‑1960. The appeal filed by Mst. Bashir Khatoon against the order of D.S.C. dated 31‑12‑1959 was heard separately by the same A.S.C. and by order dated 23‑6‑1960, he allowed the appeal and transferred the residential portion in possession of Mst. Bashir Khatoon to her against her CH Form and further held that petitioner was not entitled to the transfer of godown in his possession which was directed to be disposed of by publication. Muhammad Ismail filed revision application against both orders of A.S.C. dated 2‑4‑1960 and 26‑6‑1960 claiming transfer of residential portion situated over his shop and the godown in possession of petitioner as part of the shop transferred to him. The Settlement Commissioner by his order dated 17‑8‑1960 rejected the prayer of Muhammad Ismail for transfer of residential units as part of the shop transferred to him but in respect of godown he observed that the same will be disposed of by the D.S.C. accordingly to the policy instructions of Chief Settlement Commissioner. Muhammad Ismail was accordingly transferred the godown by the D.S.C. by order dated 19‑12‑1960. The same Settlement Commissioner by another order dated 6‑6‑1961 decided the other two revision applications filed by petitioner and Mst. Bashir Khatoon. In. this order the Settlement Commissioner held that Bashir Khatoon could not lay her claim for transfer of godown as part of residential portion, the petitioner was also held disentitled to claim transfer of godown on CS Form as he had already applied for transfer of a shop in another building. The Settlement Commissioner further held that Muhammad Ismail was also not entitled to the transfer of godown as part of his shop and directed that transfer document issued to Muhammad Ismail in respect of godown be cancelled. The petitioner challenged the order of Settlement Commissioner dated 6‑6‑1961 before the Chief Settlement Commissioner in a second revision application. Mst. Bashir Khatoon also filed a second revision application before Chief Settlement Commissioner against the order of Settlement Commissioner dated 6‑6‑1961. In both these petitions Muhammad Ismail was also impleaded as party. These two second revision applications were disposed of by Malik Fateh Muhammad, Settlement Commissioner, on the basis of a compromise between petitioner and Mst. Bashir Khatoon which provided that Mst. Bashir Khatoon shall remain the transferee of the residential portion over the godown, while the godown will be transferred to the petitioner. However, in the operative part of the order dated 12‑10‑1961 accepting the compromise, it was stated that in consequence of compromise the revision application is dismissed. The petitioner soon after passing of the order dated 12‑10‑1961 applied through a miscellaneous application to the Chief Settlement Commissioner seeking correction of the order dated 12‑10‑1961. The successor‑in- office of the Chief Settlement Commissioner allowed the miscellaneous application and corrected the order dated 12‑10‑1961 passed by his predecessor, holding that the godown will be transferred to the petitioner instead of being put to auction while the residential unit over the godown will remain transferred to Mst. Bashir Khatoon, Muhammad Ismail, deceased claimed to have filed a second revision application before Chief Settlement Commissioner on 27‑6‑1961. This application was directed against the orders of Settlement Commissioner dated 2‑4‑1960 and 23‑6‑1960. On 7‑11‑1962, Muhammad Ismail, deceased, made an application for taking up his pending second revision application but it is not known as to what action was taken by the Chief Settlement Commissioner on this application. The matter thus rested there for almost about 15, years when on 4‑11‑1978 Muhammad Ismail, deceased, again made an application to the Board of Revenue requesting that his pending second revision application be decided in accordance with law as this application was filed much prior to the repeal of Evacuee Laws. A reading of this application shows, that in this application Muhammad Ismail, deceased, prayed for setting aside of the order dated 28‑12‑1961 which was passed by Chief Settlement Commissioner clarifying his earlier order dated 12‑10‑1961. The second revision application Muhammad Ismail, deceased, was taken up by the Administrator (R.P.) and by order dated 5‑12‑1982 it was allowed upholding the transfer of godown in favour of Muhammad Ismail, deceased. This order was challenged by the petitioner before Lahore High Court which was dismissed by impugned judgment as aforesaid. In the above‑stated background, the learned counsel for the petitioner contends that firstly, there was no authentic proof on record to show that any second revision application was in fact submitted by Muhammad Ismail, deceased, against the order of Settlement Commissioner; which was pending on the date, the Evacuee Laws were repealed. It is also contended by the learned counsel for the petitioner that the conduct of Muhammad Ismail that he remained completely silent for a period of about over 15 years after filing his alleged second revision, shows that either no such proceedings were pending or that he had given up his right in respect of transfer of godown which already stood transferred in favour of petitioner under the order of Chief Settlement Commissioner dated 12‑10‑1961 as clarified on 28‑12‑1961. It is further contended by. the learned counsel for the petitioner that in any case there being no valid proceeding initiated by Muhammad Ismail deceased, to challenge the orders dated 12‑10‑1961 and 28‑12‑1961 passed by Chief Settlement Commissioner, these orders became final, which could not be set aside by the Administrator (R.P.) while hearing the second revision application filed against the orders of Settlement Commissioner dated 2‑4‑1960 and 23‑6‑1960. The contentions raised by the learned counsel require examination and we, accordingly, grant leave to appeal. The parties are directed to maintain status quo until decision of the appeal. "

3. Heard Sheikh Zia Ullah, Senior Advocate Supreme Court on behalf of appellant and Hafiz S.A. Rehman, learned Senior Advocate Supreme Court for respondents Nos.2 (i) (ii) at length.

4. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have also examined the judgment impugned with great care and caution. A careful scrutiny; of the entire record would reveal that different orders had been passed by the Settlement Authorities to set the controversy at naught. We intend to examine certain orders having substantial bearing on the controversy. In our considered view the order passed by learned Settlement Commissioner, Lahore, dated 6‑6‑1961 is the important most whereby the rights of the parties have been determined and relevant portion whereof is reproduced hereinbelow for ready reference:‑‑ "It is contended by counsel for Allauddin that this godown is in his possession and he has submitted CS Form for its transfer. The godown in dispute should, therefore, have been transferred to him. I have seen the CS Form submitted by him and I find that in fact he claimed transfer of Shop No. 100, Gowalmandi, Lahore. The godown in question appears to have been added later on by this petitioner. Moreover, against column No. 13, he has given the rent as Rs.10 p.m. ‑which is in fact is the rent of Shop No.100, Gowalmandi, Lahore. The rent of the property in dispute is Rs.15 p.m. as is shown in the copy of Survey Register of this property. I am of the view that this petitioner is in possession of both these properties. He, therefore, mentioned both these shops in his CS Form. He in fact claimed transfer of Shop No.100, Gowalmandi, Lahore, rent of which is Rs.10 p.m. Against column No. 10, he has mentioned that the shop or part thereof is not in occupation of any person other than he himself. This also shows that he has claimed Shop No. 100 which might be in his exclusive possession. The property in dispute is in possession of so many persons. Column No.16 also already establishes the that this petitioner did apply for the transfer of Shop No. 100 only and not for the property in dispute. The Deputy Settlement Commissioner, however, transferred this godown in favour of Muhammad Ismail which was never in his possession. This godown was in the illegal possession of Allaudin. I am, therefore, of the view that this transfer of the godown in favour of Muhammad Ismail is not justified. Proper course for the Deputy Settlement Commissioner was to transfer this godown to the auction pool. To sum up, this godown cannot be transferred to Mst. Bashir Khatoon because she never applied for it. Moreover, the property is situated in a commercial locality. This also cannot be transferred to Allauddin because in the CS Form he has claimed transfer of Shop No.

100. Since this godown was never allotted to Muhammad Ismail and was never in his possession even, this should not have been transferred to him. It is stated that Muhammad Ismail got a shop with a godown. I, therefore, cancel the transfer of this godown to Muhammad Ismail and direct that this should be disposed of by open auction."

5. A bare perusal of the above reproduced order would reveal that the learned Settlement Commissioner, Lahore, being the concerned forum in the hierarchy of Evacuee Laws after having gone through the entire record and after taking into consideration all the relevant facts have determined the following points which could not be reversed on flimsy grounds:‑‑ (a) Mst. Bashiran had claimed only residential portion of the property in dispute in CH Form. (b) Allauddin (appellant) had claimed that godown in question was in his possession which was also claimed in CS Form and according to him it should have been allotted in his favour (c) The learned Settlement Commissioner after having gone through the CS Form submitted by appellant was of the view that in the said CS Form Allauddin had requested for allotment/transfer of Shop No. 100 situated in Gowalmandi, Lahore, and subsequently the godown in question was also added/inserted. (d) The learned Settlement Commissioner was also of the view that column No. 13 finds mention about rent of Rs.10 pertaining to Shop No. 100 and furthermore that column No. 16 also indicated that CS Form was submitted for allotment of shop No. 100. (e) The Deputy Settlement Commissioner transferred the godown in question in favour of Muhammad Ismail which was never in his possession. (f) The godown in question was in the illegal (emphasis supplied) 'possession‑of Allauddin (g) The transfer of godown in question in favour of Muhammad Ismail was declared unjustified and improper. (h) The godown in question could not have been transferred to Mst. Bashiran as it was never claimed by her and the prescribed procedure for allotment was never followed. (i) The transfer of godown in question to Muhammad Ismail was illegal as it was neither in his possession nor allotted to him. (j) The allotment of godown to Muhammad Ismail was cancelled with the direction that the same should be disposed of by open auction.

6. The order dated 6‑6‑1961 passed by the learned Settlement Commissioner is free from any ambiguity or legal infirmity. In view of the chequered history of the case after having gone through the entire record we are of the opinion that conduct of Mst. Bashiran, Allauddin and Muhammad Ismail was not above board and every effort was made to exploit the situation by employing deceitful tactics and distortion of facts. They were bent upon to get godown in question transferred in their names after having their chunks from the disputed property which depicts the alarming gravity of their greed and unfairness. They did whatever was humanly possible and showed absolutely no reluctance and hesitation in using unfair means with connivance of the concerned staff The order dated 6‑6‑1961 passed by the learned Settlement Commissioner, Lahore, had made it clear that Mst. Bashiran, Muhammad Ismail and Allauddin were not entitled to get the godown in question transferred in their names for the reasons as mentioned hereinabove.

7. This was not the end of episode and once again by exploiting the legal provisions knowingly that the appellant has no locus standi, second revision was filed by impleading Mst. Bashiran before Chief Settlement Commissioner with the prayer that the order of learned Settlement Commissioner dated 6‑6‑1961 be set aside and that of learned Deputy Settlement Commissioner dated 31‑12‑1960 be restored. It is quire amazing that subsequently on the basis of a compromise between the appellant and Mst. Bashiran the second revision petition was dismissed by means of order dated 12‑10‑1961, which is reproduced hereinbelow:‑‑ In view of the above statements the revision is dismissed. (Sd.) 12-10-1961.

8. The abovementioned compromise is a unique sort of compromise on the basis whereof in a cunning manner the order dated 6‑6‑1961 bas been frustrated. The learned counsel for the appellant when asked that how the said compromise between Mst. Bashiran and. Allauddin can frustrate the said order, no answer whatsoever was given by him except that it was a sort of clarification of order dated 12‑10‑1961. In fact there was no legal justification whatsoever for passing order dated 12‑10‑1961 which is a classic example of abuse of power and misuse of authority. Be as it may, the order dated 12‑10‑1961 in no way can affect the order dated 6‑6‑1961. It is worthmentioning that Mst. Bashiran had absolutely no authority or locus standi to transfer the godown in question to Allauddin. As mentioned hereinabove their conduct was not above board and they have not approached the forums concerned with clean hands. In the said compromise the Settlement Authorities were not impleaded as party and it is also silent regarding Muhammad Ismail. The submission of compromise and its acceptance by Allauddin is a classic example of fraudulent conduct which should have been taken care of by the concerned Authorities. The order dated 6-6‑1961 is unambiguous wherein it was held in a categoric manner that Mst. Bashiran was not entitled for its allotment and regarding Allauddm (appellant) it was concluded that he was an illegal occupant. In such view of the manner Mst. Bashiran and Allauddin were not competent to execute any compromise for the godown in question being unconcerned persons and accordingly the said compromise is ab initio void. (Emphasis provided) No clarification whatsoever could confer the title of godown in question upon Allaudin. We are in agreement with the observation of learned High Court in this regard which is as follows:‑‑ "It is sometimes afterwards that on realizing the true import of the above order, whereby his right qua the godown stood finally foreclosed, the petitioner devised an ingenious plan to retrieve the situation by moving an application dated 17‑10‑1961 before Mr. Sultan Muhammad Khan, another Chief. Settlement Commissioner, seeking 'clarification' of order dated 12‑10‑1961. to mean thereby that the godown thus stood transferred to the petitioner and the flat to Mst. Bashiran Khatoon. This application was illegally accepted in exercise of powers as Chief Settlement Commissioner for review' by the said officer on 28‑12‑1961 and relief, as prayed for, was granted. Power of review was not available to the Chief Settlement Commissioner at that time."

9. In order dated 6‑6‑1961 the question of entitlement concerning Muhammad Ismail, Mst. Bashiran and Allauddin has been determined and in our view the said order being lawful cannot be reversed, modified or clarified by any authority and it should be implemented.

10. Insofar as the claim of Muhammad Ismail is concerned that is also baseless who kept mum for more than a decade and thus impliedly abandoned his claim, if any. He has tried his luck again as the area in question has become commercialized and there is considerable increase in the prices. It transpires from scrutiny of record that allegedly second revision petition was filed by Muhammad Ismail assailing the order dated 6‑6‑1961 passed by learned Settlement Commissioner, Lahore, on 27‑6‑1961 but it was dismissed in default. After a long period another attempt was made on 4‑11‑1978 requesting the Settlement Department for disposal of the second revision petition. The indolence of Muhammad Ismail would certainly attract the principle of laches, waiver and estoppel who all of sudden woke up from slumber after about two decades. Allauddin and Mst. Bashiran were not impleaded as parties in Revision Petition bearing No.166 of 1961 for the reasons best known to Muhammad Ismail. In fact Mst. Bashiran, Allauddin and Muhammad Ismail were bent upon to get the property in question by hook and crook because the desire to amass wealth by illegal means as penetrated in all walks of life which is regrettable. It may not be out of place to mention here that Muhammad Ismail had sworn an affidavit on 16‑1‑1978 concerning Shop No.37 wherein it was mentioned that no revision or appeal was pending in any Court. He cannot be allowed to change his stance in accordance with the situation. We are not persuaded to agree with Hafiz S.A. Rehman, learned Senior Advocate Supreme Court that since relevant record was not available as such Muhammad Ismail remained quiet for a longer period but it is noticeable that no effort whatsoever was made by Muhammad Ismail to get his revision petition disposed of and no application whatsoever was made in this regard before any forum which is hardly inconceivable. We are also not persuaded to agree with Hafiz S.A. Rehman, learned Senior Advocate Supreme Court that order dated 6‑6‑1961 passed by learned Settlement Commissioner was in their favour. Had it been so there would have no justification for filing second revision.

11. The order passed by Mr. Sultan Muhammad Khan, learned Settlement and Rehabilitation Commissioner, on miscellaneous petition submitted by appellant for the clarification of order passed by Malik Fateh Khan, learned Settlement‑Commissioner dated 12‑10‑1961 whereby the petition of Allauddin was dismissed is without any lawful authority and thus can be termed as void as Mr. Sultan Muhammad Khan, learned Settlement and Rehabilitation Commissioner, had no authority to review the order dated 12‑10‑1961 and to modify it in a drastic manner which cannot be done while exercising the powers of review even if it were available to him.

12. The upshot of the abovementioned discussion is that the order dated 6‑6‑1961 passed by learned Settlement Commissioner, Lahore, having attained finality being well‑based and in accordance with law shall be kept intact. The godown. in question shall be disposed of by means of open auction and the appellant may participate in the same. In view of what has been stated hereinabove the appeal filed by Allauddin is rejected and impugned order, up to the extent of Muhammad Ismail, is also declared to be without any legal effect. Q.M.H./M.A.K./M‑551/S Order accordingly.