1989SCMR178 (PLP)

Date of hearing: 10th January, 1981. NASIM HASAN SHAH, J.‑‑The dispute relates to a property bearing No. 123, Block No. 13, Dera Ghazi Khan. This was allotted to the petitioner on 24‑1‑1950 by the Rehabilitation Department. He was a local and, therefore, on the commencement of the Settlement Operation he applied on form LH for the transfer of the said property. It was transferred to him on 23‑2‑1960. However, some complaints were tiled before the Deputy Settlement Commissioner that the property was a shop and the petitioner being a local could not get it and had managed to obtain its transfer by fraudulent means. The Deputy Settlement Commissioner, therefore, caused inquiries to be made and on the basis of the said inquiries was convinced that the property was a commercial premises, as it consisted of garages and according to him had to be treated as shop which could not as the law then stood, be transferred to a local. The Deputy Settlement Commissioner, accordingly sought permission to review the transfer order from the Additional Settlement Commissioner which was granted. He then reviewed the order holding that the property was a shop and rejected LH form of the respondent on 16‑3‑1960. He also ordered on 12‑7‑1960 that the property be put to auction and it was actually auctioned on 13‑10‑1960 and was purchased by respondent No. 1 (Abdul Aziz) for Rs. 8,

200. The auction was confirmed in due course by the Additional Settlement Commissioner. Dissatisfied the petitioner filed an appeal on 17‑9‑1960 against the order of the Deputy Settlement Commissioner dated 16‑3‑1960 rejecting his LH form before the Additional Settlement Commissioner. The appeal was dismissed in default on 1‑10‑1960. He then filed a revision petition on 31‑3‑1961. The same was dismissed in default on 18‑5‑1961. On 21‑8‑1961 he filed an application for restoration of the revision petition. On report of the office on 20‑9‑1961, the petition was restored the same day. Ultimately, the revision petition was accepted by the Settlement Commissioner on 6‑3‑1962, who held that his inspection revealed that the property "for all intents and purposes at present is a residential house". The order was challenged by respondent No. 1 before the Lahore High Court in its writ jurisdiction. The petition was accepted by a learned Single Judge on 14‑10‑1965. The petitioner then filed an L.P.A. to challenge this order on the ground that he had not been served before the date of hearing. This plea was accepted and the appeal was accordingly allowed by a Division Bench and it was ordered vide judgment dated 18‑2‑1974 that the writ petition be deemed to be pending. This petition was ultimately heard by A.S. Salam, J., who after examining the material placed before him including the report of the Deputy Settlement Commissioner (Policy) that the property was being used as a commercial premises all along held that the order of the learned Settlement Commissioner dated 6‑3‑1902 wherein he had observed that after inspection of the spot the property to all intents and purposes at present was a residential horse was not a legal disposal of the question whether the property was liable to be transferred as a house or a shop because according to the material placed before him the property appeared to have been used as business premises up to 1961. The Settlement Commissioner was oblivious of the aspect of the question that even though the property may have been allotted as a house if it had been used as a shop, the question of its transfer was to be governed by the use to which it was put on 20th December, 1958. In this connection, attention was invited to the instructions relating to transfer of converted properties appearing at page 493 of the new Settlement Manual which are couched thus: "As a general principle, the property will be disposed of according to the use to which it was being put on 20‑2‑1958 when the Additional Settlement Commissioner is satisfied that the property should be disposed of in public interest according to its status at the time it became evacuee property." The learned Judge went on to observe that as the property was being used for commercial purposes at the relevant time he was not eligible for its transfer. The order of the Settlement Commissioner dated 6‑3‑1962 was, therefore, declared as without lawful authority, vide judgment dated 18‑3‑1975. This is a petition for leave to appeal against the said judgment. During the course of hearing of this petition, the learned counsel for respondent No. 1 appeared and was also issued notice to complete the record. He has also been heard. The resume of facts made above shows that the order of the learned Settlement Commissioner has been reversed by relying on the material which was placed before the High Court for the first time and which was not before the Settlement Commissioner or considered by him at the hearing of the revision petition. It is settled law that where it is felt that questions have been left undecided by the inferior Authority or Tribunal, it is more appropriate to return the case to the said Authority or Tribunal, after quashing the order complained against for deciding the matter in the light of the material on which decision of the undecided question is desired and that the High Court should not substitute its own judgment for that of the authority concerned. See Azmat Ali v. Chie. Settlement and Rehabilitation Commissioner PLD 1964 SC

261. Mr. Mazharul Haq, learned counsel for respondent No. 1 submitted that the order of the Settlement Commissioner dated 6‑3‑1962 was rightly set aside as it was not valid because the revision petition which was accepted by him was barred by time and the same had been accepted without adverting to that aspect. We feel that even on this score, the case is liable to be remanded to the revisional authority after setting aside the order of the Settlement Commissioner dated 6‑3‑1962 for considering this point as well, namely, whether or not the revision petition was liable to be dismissed on the ground of limitation. For all these reasons, the order of the learned Settlement Commissioner dated 6‑3‑1962 as also the impugned order of the High Court dated 18‑3‑1975 are set aside and the case is remanded to the notified authority under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 for decision of the revision petition filed by the petitioner afresh in the light of the observations made above. This petition is converted into an appeal and disposed of accordingly leaving the parties to bear their own costs. M.Y.H./S‑211/S Case remanded.