1968 SCMR 175 (PLP)

HAMOODUR RAHMAN, J.-This appeal, by special leave, is from a judgment of a Division Bench of the High Court of West

1. Pakistan at Lahore quashing under Article 98 of the Constitution, an order passed by a Deputy Settlement Commissioner on the 20th of March 1960, and alit subsequent orders based thereon by the higher Settlement Authorities on the ground that, they had been made without lawful authority and were of no legal effect, and then remanding the case back to the Deputy Settlement Commissioner for a fresh decision after considering the CH form submitted by the respondent Muhammad Ramzan. The dispute in this case relates to an evacuee property No. B/1921 situated innkede Lohari Mandi, Lahore. This is a composite building consisting of shops and residential portions. It was occupied by seven persons including the respondents Ghafar and Ramzan. Out of these occupants Ghafar alone, it appears, originally submitted an NCS form for the transfer of the shop in his possession but before the Deputy Settlement Commissioner also orally prayed for the transfer of the residential portion as well, as his NCH form for house No. 403/C had not been accepted and that house had been transferred to some other person. For this purpose he also applied to associate with himself the appellant, who was a claimant displaced person. The Deputy Settlement Commissioner on compassionate grounds accepted this prayer and transferred to him not only the shop in his possession but also the residential portions both above the shop and adjoining it on the ground floor. The association of the appellant in this transfer was also approved. The portion in occupation of the respondent Ramzan, which consisted of a shop, a connected room and the residential portion above, was, however, "reserved for auction" presumably because the Inspector had reported that his form was not traceable on the file. This order was passed by the Deputy Settlement Com missioner on the basis of the statement of Muhammad Ramzan subsequently recorded by the Settlement Inspector to the effect that Ramzan had before the 20th of March 1960 admitted that he had not filed any form for the transfer of the house in dispute. Thereafter, on the 2nd of May 1960, Muhammad Ramzan, however, did actually put in a CH form for the, transfer of the entire property B/1921, associating with him his brother Muhammad Ibrahim, on the basis of their joint claim which, it is alleged, had been verified certainly to the extent of Rs. 4,038-6-0 on the 16th of November 1959, The Settlement Authorities, nevertheless, put the said portion to auction on the 4th of May 1960, and it was purchased by the appellant herein. Muhammad Ramzan then on the 6th January 1962, filed an appeal before the Additional Settlement Commissioner against the order of the Deputy Settlement Commissioner passed on the 20th of March 1960. This appeal was dismissed both on the ground that the CH- form filed on the 2nd of May 1960, could not he taken into consideration, as it was a belated form which had been tiled after the property had been actually disposed of, and also because it was barred by time by more than a year - and a half. A revision application against this order filed by Muhammad Ramzan also failed on the 15th of November 1962. -Fie then invoked the jurisdiction of the High Court under Article 98 of the Constitution on the 9th April 1963, making both-Ghaffar and Azimullah respondents in his petition. The High Court took the view that on the NCS form filed by Abdul Ghatiar, the Deputy Settlement Commissioner was not competent to transfer to him the residential portions which were not in his occupation. It was furthermore held that the Deputy Settlement Commissioner was hound to hear not only the applicant or applicants for the transfer of the property but also all other persons who may have applied for its transfer under paragraph 8 (2) of the. Settlement Scheme No

1. Hence, since Ramzan had claimed before the Inspector to have filed a CS form, the Deputy Settlement Commissioner had notice of the fact that Ramzan, a claimant displaced person, was in occupation of portions of the premises and was clearly anxious for its transfer, because he had so stated before the Settlement Inspector whose report was actually referred to by the Deputy Settlement Commissioner in his order. In the circumstances, according to the High Court, the Deputy Settlement Commis sioner had acted with material irregularity in not considering the claim of Muhammad Ramzan in spite of fact that his form was reported to be not on the file and transferring the residential portion also to Abdul Ghaffar who had neither applied for it nor was in possession of it. This Was according to the High Court, no proper disposal at all of the case relating to the transfer of this composite property. The order of the Deputy Settlement Commissioner and of the higher Settlement Authorities subsequent tel this order were, accordingly, set aside and the case was sent back for fresh decision after considering the claim form of Muhammad Ramzan. Azimullah has come up on appeal from this order, of the High Court by the special leave of this Court, which was granted to consider whether the High Court was competent to go behind A the finding of the departmental authorities to the effect that Muhammad Ramzan had not filed any form for the transfer of the property in dispute prior to the order for its transfer. Learned counsel appearing in support of this appeal has con tended-that the High Court was wrong in taking the view that Muhammad Ramzan had filed any form for the transfer of this property before the 20th of March 1960. He, it is pointed out, may have Stated so at first before the Settlement Inspector but the subsequent note of the Settlement Inspector on this very report would itself indicate that Ramzan did ultimately admit that he had not filed any such form for the transfer of the property. The form, if any, filed by Muhammad Ramzan was the one filed on the 2nd of May 1960, which was long after the order for the transfer of the property had been made. He, could not, therefore, on the basis of such a belated form, claim as of right the transfer of the property. The reliance placed by Muhammad Ramzan on an earlier application .put in by him on the 5th of June 1959, for the issuance of a compensation book cannot possibly be treated as an application for transfer. This is no doubt correct but a reference to the order of the Deputy Settlement Commissioner will show that on the 20th March 1960, no order at all had been passed for the transfer of the portion in the possession of Muhammad Ramzan. All that the Deputy Settlement Commissioner had stated in his order with regard to this portion is that it is "hereby reserved for auction". This is not an Order for its transfer. There is also nothing on the record to show if any further order had been made for actually putting the property up to auction. Hence it cannot now he disputed that on the 2nd of May 1960 before the property had been either transferred or put to auction Muhammad Ramzan had actually filed a CH. form as a claimant in possession of a portion of the premises: The question now raised is that since this form had been tiled before any order for the transfer of this portion had been made, could the auction have been held even after the filing of this form without first considering the entitlement of Muhammad Ramzan to the transfer of the portion in his occupation? Under the Schedule appended to the Displaced Persons (Compensation and Rehabilitation) Act. 1958, an evacuee property can he disposed of by auctioe only if it has not been transferred under paragraphs 1, 2, 3 and 4 thereof. Paragraph 1 deals with houses in possession of a claimant and provides that it shall he transferred to him at a price determined on evaluation, para graph 2 deals with the case of non-claimant in possession, paragraph 3 deals with the rights of locals in possession, paragraph 4 deals with the disposal of evacuee properties under the earmarking scheme and then paragraph 6 ultimately provides that a "house not transferred under paragraphs 1, 2, 3 and 4 shall be to .the highest bidder in an unrestricted public auction." An evacuee house can, therefore, be disposed of .by auction only if there is no person who claims it under any of the earlier paragraphs. Without determining the claim, therefore, of Ramzan, who sas a claimant in possession, entitled unde paragraph 1 to the transfer of the property, the same could not have been put to auction as was done in. this case two days after Ramzan had actually filed his CH form. On this ground alone this appeal must fail, for, the High Court has undoubtedly come to a right decision that the case of the disposal of the portion in possession of Muhammad Ramzan had not been dealt with in accordance with law, though for different reasons. Learned counsel for the appellant has contended that since the CH form filed by Muhammad Ramzan on the 2nd of May 1960, was itself out of time, and the delay was not condoned, C no question can now arise of his claiming transfer on the basis of the said CH form. The short answer to this is that since the Settlement Authorities had not, at any stage, decided that there, are no grounds or condoning the delay, if any, in the tiling of the CH form by Muhammad Ramzan it cannot be said that Ile had lost his entitlement. Indeed, the case of Muhammad Raman has, actually been dealt with by the Settlement Authorities after the High Court's order and the Deputy Settlement Commissioner has, on the 29th of March 1965, re-considered the case and ordered the transfer of the residential portion on the first floor and the shop in his possession on the ground floor to him. He has also transferred the shop in possession of Abdul Ohaffar along with certain rooms adjoining it to the latter. This order has been upheld in appeal by the Additional Settlement Commissioner on the 21st of May 1965, and a revision now pending before the Settlement Commissioner would have been disposed of but for the stay ordered by this Court. if the appellant has any valid objection to the entertainment of the CH form of Muhammad Ramzan he can still raise this objection before the Settlement Commissioner in the revision pending before him, for, it seems to us that there is no ground for interference in this matter at this stage. The case should be allowed to proceed before the Settlement Commissioner who will be fully competent to dispose of it as a pending proceeding. Since the further hearing of the revision was stayed by this Court that order will be vacated and this appeal will be dismissed, but there will be no order as to costs, Appeal dismissed.