1974 PLP 499 (SCMR)

MUHAMMAD GUL, J.‑The dispute in this case relates to the transfer of evacuee shop No. P/219, Ward No. 5, Bhawana Bazar, Lyallpur. The initial contest was between one Barkat Ali, a claimant allottee but not in possession of the shop, and Ata Muhammad respondent No. 2 herein also a claimant, who had been in its unauthorised possession since about the year 1952. Each of them separately applied for its transfer. The, Deputy Settlement Commissioner transferred the shop to Barkat Ali because besides being a claimant, he was its allottee. On appeal by Ata Muhammad, the transfer in favour of Barkat Ali was set aside by the Additional Settlement Commissioner and the case was remanded for a fresh decision on merits. On remand, another Deputy Settlement Commissioner after inquiry in the case held that Ata Muhammad had filed his form for transfer of another shop, namely, No. 238/W‑7, but with the connivance of the staff had changed its number in his form, to that of the shop in dispute. His form was therefore rejected. The Deputy Settlement Commissioner also rejected the form of Barkat Ali because in spite of the allotment in his favour he had never been in possession of the shop, nor he had taken any steps to secure its possession so as to become eligible for its transfer under Notification No. 2099, dated 6‑9‑1960 issued by the Chief Settlement Commissioner. Having thus non‑suited both the applicants, the Deputy Settlement Commissioner ordered the disposal of the shop by unrestricted public auction. This order is dated 16‑4‑1964. Barkat Ali did not pursue the matter any further, and therefore, was excluded from the contest. The above order of the Deputy Settlement Commissioner was unsuccess fully challenged by respondent No. 2 in appeal and revision before the Settlement Authorities and then by means of a writ petition in the High Court. Eventually the shop was sold by auction to Imam‑ud‑Din, petitioner No. 1 for Rs. 46,

000. The auction was confirmed by the Additional Settlement Commissioner on 17‑12‑1966. Having paid all the dues, P. T. D. was also issued in favour of the petitioner No. I on 2‑2‑1967. Later, by a registered sale‑deed dated 8‑7‑1967, he sold one‑half share in the shop to Fazal Muhammad petitioner No.

2. In the meantime, Settlement Scheme VIII came into force. Respondent No. 2, on the basis of his possession applied on 22‑11‑1966 for the transfer of the shop under that Scheme. His application was rejected by the Deputy Settlement Commissioner on 3‑4‑1967, on the ground that the shop had already been sold to petitioner No. 1, and therefore, was not available for transfer under Scheme VIII. No appeal was filed by respondent No. 2 against the rejection of his application under Scheme VIII until 10‑2‑197u when his ejectment from the shop was ordered by the Rent Controller on an application made under West Pakistan Ordinance VI of 1959 by the two petitioners. By this belated appeal, respondent No. 2 not only challenged the order of the Deputy Settlement Commissioner dated 3‑4‑1967 rejecting his application under Scheme VIII, but also the auction sale in favour of the petitioner No.

1. To get over the bar of limitation, respondent No. 2 also applied for condonation of delay. The Additional Settlement Commissioner by order dated 6‑5‑1970 condoned the delay, but dismissed the appeal on merits. Each party filed a revision against the above order of the Additional Settlement Commissioner. The Settlement Commissioner by order dated 7‑10‑1972 accepted the revision of respondent and set aside the auction sale in favour of petitioner No. 1 on the ground that with the introduction of Settlement Scheme VIII, the Chief Settlement Commissioner issued telegraphic instructions vide No. 3439/Pol, on 21‑6‑1966 to all the Deputy Settlement Commissioners prohibiting auction sale of houses and shops until further orders, and also requiring the deletion of those properties which had already appeared on the auction list. Accordingly, the Settlement Commissioner found that the auction sale in favour of the petitioner No. 1, having taken place in violation of the above prohibition must be "deemed to have not taken place" and its subsequent confirmation on 17‑ I 2‑1966 and P. T. D. were of no effect. On that view of the matter, the learned Settlement Commissioner came to the further conclusion that the shop in dispute was still "available" for transfer under Scheme VIII when respondent No. 2 applied for its transfer. As a result, the case was remanded once again to the Deputy Settlement Commissioner with the direction that the application of respondent No. 2 be disposed of on merits. As a consequence of the above finding, the revision filed by the petitioners was dismissed. Aggrieved by the order in revision by the Settlement Commissioner, the petitioners filed Writ Petition No. 98/11 of 1973, on 31‑1‑1973, which was admitted for full hearing on 27‑3‑1973 by a learned Single Judge. This is still pending adjudication in the High Court. In the meantime, on a miscellaneous application filed by the two petitioners the learned Single Judge, vide order dated 5‑2‑1973, stayed ad interim further proceedings before the Settlement Authorities pursuant to the remand order. However, before the stay order was issued, the Deputy Settlement Commissioner on 25‑1‑1973, transferred the shop in dispute to respondent No. 2, pursuant of the remand order of the Settlement Commissioner. Aggrieved .by the order of the Deputy Settlement Commissioner transferring the shop to respondent No. 2 the petitioners filed another writ petition being No. 325/11 of 1973. This was, however, dismissed in limine by the same learned Judge who had earlier admitted Writ Petition No. 98/11 of 1973, on the short ground that the impugned order by the Deputy Settlement Commissioner was subject to the incidence of appeal and revision to the higher Settlement Authorities and, therefore, could not be challenged in writ jurisdiction. This order is dated 20‑4‑1973. The petitioners seek special leave against the above order of the learned Single Judge and it is submitted by their learned counsel that the learned Single Judge having admitted Writ Petition No. 98/11 of 1973, for full hearing, ought to have also admitted Writ Petition No. 325/11 of 1973, and disposed of both the writ petitions together, the parties and the property in dispute being the same in both the writ petitions. The ratio decidendi of the impugned order is hardly open to any objection, for it is not controverted that the order of the Deputy Settlement Commissioner transferring the shop to respondent No. 2 is subject to the incidence of appeal and revision to the higher Settlement Authorities. We, are, however, of the view that it was unnecessary to file the second writ petition because the impugned order of the Deputy Settlement Commissioner A dated 25‑1‑1973 was wholly consequential to the remand order of the Settlement Commissioner dated 7‑10‑1972 which still remains under challenge in the High Court in Writ Petition No. 93/11 of 1973. If that writ petition succeeds, all subsequent orders including the transfer of the shop in favour of respondent No. 2 shall Ipso facto stand nullified. Being in the nature of the consequential to the remand order dated 7‑10‑1972, they cannot stand independent of that order. On that view of the matter, therefore, there is no case for interference by this Court. The petition is accordingly dismissed. Petition dismissed.